Draft of House TSCA reform bill expected today.

Rep. John Shimkus (R-IL) is expected to release today a discussion draft of his bill to modernize the Toxic Substances Control Act (TSCA). Rep. Shimkus, the Chairman of the House Energy and Commerce’s Subcommittee on Environment and the Economy, announced that he will discuss the draft with reporters tonight, and that he will work to build support with House Democrats, who were not involved in the bill’s development. Although the Subcommittee has held five hearings on TSCA, this proposal would be the first House legislation on the issue, while the Senate has considered two bipartisan bills this year. Rep. Shimkus said that he would hold two hearings on his legislation.

It is not yet known how the House proposal compares to the leading bipartisan Senate bill, the Chemical Safety Improvement Act (CSIA, S. 1009). Industry insiders expect Rep. Shimkus’ bill to resemble the CSIA, which some House Democrats have said they would not support in its current form. Sen. Barbara Boxer (D-CA), a vocal critic of certain provisions of the CSIA, acknowledged that she has had good communication with Rep. Shimkus on his bill, but is still looking for agreement on state preemption issues. Sen. Tom Udall (D-NM), who is working with CSIA cosponsor Sen. David Vitter (R-LA) to amend the Senate bill, says that “significant changes are happening” to the CSIA to gain support from critics like Sen. Boxer, and an updated version will be released soon.

Earlier this month, Rep. Shimkus told Bloomberg BNA that he expected the Subcommittee to approve his proposal by mid-March and to bring the bill before the full Energy Committee in late spring or early summer. At the time, Rep. Shimkus said the legislation would address three main issues: preemption of state regulations; industry concerns about protecting confidential business information; and the prioritization of new chemical reviews.

House Subcommittee holds fifth and final hearing on TSCA reform.

Yesterday, the House Energy and Commerce’s Subcommittee on Environment and the Economy held its fifth hearing on the Toxic Substances Control Act (TSCA). In its last hearing on the subject for the 113th Congress, Subcommittee members focused on TSCA sections 4 and 8, which govern chemical testing and information reporting and retention requirements. (We previously covered Subcommittee hearings on TSCA here and here.)

In his opening remarks, Subcommittee Chair John Shimkus (R-IL) expressed his interest in reconsidering EPA’s authority to “produce tailored, necessary and high quality test data and other information to carry out TSCA.” Rep. Shimkus also highlighted the need to reexamine section 8’s exemptions to reporting requirements and the definition of “processor.”

Both Republican and Democratic members emphasized the importance of sending TSCA modernization legislation to the President this year. Committee Ranking Member Henry Waxman (D-CA) offered to work with Rep. Shimkus, whose office has reportedly been developing TSCA reform legislation without input from any Democratic members. Rep. Waxman also pointed out that the public interest community is deeply concerned with the bipartisan Senate bill known as the Chemical Safety Improvement Act (CSIA) and noted that the American Chemistry Council and Safer Chemicals, Healthy Families coalition had in 2011 identified and documented areas of agreement in a mediated discussion. Rep. Waxman and Subcommittee Ranking Member Paul Tonko (R-NY) sent a letter to the two organizations requesting this documentation in the hope that it might “provide a blueprint for legislative success.”

Hearing witnesses from the private and public sectors all voiced their support for TSCA modernization. Industry members called for a flexible, prioritized risk-based approach to screening and assessing chemicals. Public sector witnesses advocated for significant reform of TSCA’s testing and reporting requirements, including making it easier for EPA to require testing from manufacturers, especially for vulnerable populations such as children and pregnant women, and increasing transparency for data currently protectable as Confidential Business Information (CBI).

The January 9 chemical spill in West Virginia prompted witnesses and Democratic members to question the adequacy of TSCA’s data collection, pointing out the lack of basic health and safety data on the contaminant in that spill. Also on Tuesday, the Senate Subcommittee on Water and Wildlife, part of the Environment and Public Works Committee, held a hearing on the safety and security of drinking water supplies. Senator Joe Manchin (D-WV) testified at that hearing, calling for stronger chemical storage standards and more frequent safety inspections, as well as TSCA reform.

Senators introduce chemical spill and water protection bill after West Virginia leak.

On Monday, Senator Joe Manchin (D-WV) introduced a bill to prevent future chemical spills like the one that recently contaminated the Elk River and the drinking water for 300,000 West Virginians. The Chemical Safety and Drinking Water Protection Act of 2014 (S. 1961), cosponsored by Senators Barbara Boxer (D-CA) and Jay Rockefeller (D-WV), provides a framework for overseeing chemical storage facilities and equipping states and public water companies to respond to spills and other emergencies. The bill amends the Safe Drinking Water Act (SDWA) by adding a new Part G, “Protection of Surface Water from Contamination by Chemical Storage Facilities.”

According to a press release from Sen. Manchin’s office, the Act is premised on four key principles:

1. Requiring regular state inspections of above-ground chemical storage facilities,
2. Requiring industry to develop state-approved emergency response plans that meet at least minimum guidelines established in this bill, 
3. Allowing states to recoup costs incurred from responding to emergencies, and 
4. Ensuring drinking water systems have the tools and information to respond to emergencies.

The Act applies to chemical storage facilities for which the EPA or delegated state authority has determined “that a release of the chemical from the facility poses a risk of harm to a public water system.” It establishes state programs under SDWA to oversee and inspect the facilities, building on existing water protection plans. The bill sets federal minimum standards for chemical facilities regarding construction, leak detection and spill requirements, emergency response plans, and notification to EPA, state officials, and public water systems of stored chemicals. Inspections would be required on a regular basis, either every three of five years, depending on drinking water protection plans. The Act also ensures that EPA or the states can recover costs from facility owners and operators for emergency response activities.

The bill does not tackle the current framework’s deficit of health hazard information for the over 60,000 chemicals “grandfathered” in by the passage of the Toxic Substances Control Act (TSCA) – a gap which has received significant public criticism in the wake of the Elk River spill. There has been no indication whether the TSCA reform bills currently pending in the Senate Environment and Public Works (EPW) Committee might be amended in response to the West Virginia spill.

The text of the legislation [PDF] and a one-page fact sheet [PDF] are available on Sen. Manchin’s website. The bill has been referred to the Senate EPW Committee; the Subcommittee on Water and Wildlife has scheduled a hearing for February 4 entitled, “Examination of the Safety and Security of Drinking Water Supplies Following the Central West Virginia Drinking Water Crisis.”

Industry optimistic on passing TSCA reform; House bill in the works.

Although there has been no reported progress on Senate attempts to amend the Chemical Safety Improvement Act (CSIA) since last month’s update, the American Chemistry Council (ACC) weighed in last week with confidence that legislation to reform the United States’ outdated Toxic Substances Control Act (TSCA) could pass before the 2014 elections. ACC President Cal Dooley told a press briefing: “There continues to build momentum that could result in enactment of CSIA or some version thereof prior to the November elections.”

The ACC, the major trade group representing chemical and plastics companies, has supported the CSIA since its introduction in May. Despite bipartisan support and backing from industry and some environmental groups, the CSIA has been strongly criticized by key Democrats, including Senate Environment and Public Works Chairwoman Barbara Boxer (D-CA), and a large coalition of environmental and public health groups. In response, the CSIA is quietly being reworked in the Senate to achieve broader support.

The Energy and Commerce Committee has held four hearings on TSCA, but similar legislation has yet to be introduced in the House. However, Chemical Watch reported last week that industry representatives, sharing Dooley’s optimism, said that a House version of the bill is being prepared in the office of Rep. John Shimkus (R-IL). The House bill is expected to address objections raised by critics of the CSIA such as preemption of state laws and protections for especially vulnerable populations.

Congressional subcommittee reviews CSIA, EPA reveals its views.

As we reported last week, the House Subcommittee on Environment and the Economy held a hearing to review the Chemical Safety Improvement Act (S. 1009) (CSIA) on November 13, 2013. At the hearing, EPA for the first time revealed its views on a number of CSIA provisions, although it has not developed a formal position on the Act.

Jim Jones, EPA assistant administrator of the Office of Chemical Safety and Pollution Prevention, was among the ten witnesses who testified at the hearing. During the questioning period of the hearing, Jones identified areas of CSIA that were improvements over TSCA, such as the requirement under Section 5 for an affirmative finding of safety by EPA on new chemical notifications, the ability to use order authority under Section 4 to obtain testing, and the ability to share confidential business information (CBI) with states.

Jones also identified issues that warranted further discussion, such as whether the requirement under Section 6 for extensive analysis of alternatives could lead to “paralysis by analysis,” whether judicial review of “low priority” decisions should be barred, and whether consideration of vulnerable populations under safety assessments should be extended to safety determinations and risk management actions. In addition, Jones called for a better balance of preemption issues, stronger deadlines, and clearer testing requirements under Section 4.

At the hearing, Senator Tom Udall (D-NM) said that he and Senator David Vitter (R-LA) were focused on three main issues: making sure EPA has the tools it needs to protect citizens and review the existing chemicals in commerce, preserving private rights of action against companies, and protecting the ability of states to safeguard their citizens. A day earlier, Sen. Vitter had made a renewed push for the CSIA’s passage, following a National Research Council (NRC) report that recommended improvements in the EPA’s assessment of inorganic arsenic. Sen. Vitter cited the report as a “prime example of why EPA’s risks assessments are flawed,” and called it “embarrassing” that EPA needed supervision in one of its key roles.

However, the overall tone at the hearing was very courteous among the Committee members and between the Chair and the witnesses. Sen. Vitter stressed his and Sen. Udall’s willingness to work with anyone committed to meaningful bipartisan reform, and most of those present at the hearing promised continued attempts to reach a consensus bill.

Congress making progress on amending TSCA reform bill.

Congress continues to make progress in addressing concerns about the Chemical Safety Improvement Act (CSIA), with one congressional aide close to the process telling ChemicalWatch last week that “all the concerns and issues are solvable.” However, industry and NGO sources say the remaining issues that need to be dealt with make it unlikely that the TSCA reform bill will pass before the end of this year.

The CSIA is currently before the Senate Environment and Public Works (EPW) Committee, chaired by Barbara Boxer (D-CA). In August, Sen. Boxer dropped her opposition to the CSIA and promoted “fast-tracking” the compromise bill. However, Sen. Boxer has said that the bipartisan bill can move forward only if the Toxic Substances Control Act (TSCA) is amended to incorporate some “basic principles” such as specific protection for vulnerable populations, more definite time frames for EPA action, and holding all responsible parties accountable in cases of harm.  Most importantly, Sen. Boxer wants the bill’s language to ensure that state laws such as California’s Proposition 65 are not preempted.

Staff from the offices of Senators David Vitter (R-LA) and Tom Udall (D-NM), who co-sponsor the CSIA, have been working together on revisions to address concerns raised by Sen. Boxer and NGOs. As we previously reported, Sen. Vitter has said that the CSIA is not intended to eliminate private rights of action under state tort law, or remove the authority of any state to protect their water, air, or citizens.

The Congressional aide that spoke to ChemicalWatch said that whether the bill will be marked up this year depends largely on the EPW Committee’s other agenda items. Both industry and NGO sources do not expect passage of a TSCA reform bill this year, although prospects seem better for passage during the second year of the 113th Congress. Meanwhile, the House Subcommittee on Environment and the Economy, which held three informational hearings on TSCA this year, plans to hold its first hearing on the CSIA on November 13.

House Subcommittee convenes hearing on role of TSCA preemption.

On September 18, 2013, the House Energy and Commerce Subcommittee on Environment and the Economy held its third in a series of hearings on Toxic Substances Control Act (TSCA) issues. The hearing focused on TSCA’s section 6, which relates to unreasonable risk from existing chemical substances, and section 18, which relates to preemption.

Section 6 has become a focal point for determining TSCA’s effectiveness in regulating hazardous chemicals. During the hearing, members of the subcommittee discussed the concepts of “unreasonable risk” and “least burdensome” alternatives, which have been pivotal in how the EPA approaches restricting or banning chemical use. Other issues raised by members of the subcommittee include whether the section 6 standard should be changed to eliminate cost-benefit analysis when EPA regulates existing chemicals, and the effects of the Corrosion Proof Fittings decision on EPA’s willingness to use its section 6 authority. Members disagreed over which aspect of the decision was more problematic—the court’s interpretation of the “least burdensome” requirement or the deficiencies in EPA rulemakings.

Section 18, which addresses when TSCA can pre-empt state law, has become particularly contentious in discussions about the draft Chemical Safety Improvement Act (CSIA). In the absence of federal action, U.S. states have enacted many local laws regulating certain chemicals, and they are concerned that proposed changes to TSCA might prevent these state laws from working effectively. Specific issues raised regarding TSCA preemption include the need for automobile manufacturers to have one national program for chemical regulation and for states to have access to confidential business information (CBI) in order to protect human health and the environment.

The Subcommittee’s background memorandum and an archived webcast of the September 18, 2013 hearing are available online.

A Look Back at the Senate’s TSCA Reform Hearing and Reactions.

Last month, we reported that the U.S. Senate Committee on Environment and Public Works had scheduled a full-committee hearing on various legislative proposals to reform TSCA. The hearing on July 31 consisted of three panels with a total of 19 witnesses including public health advocates, legal and health experts, representatives from state government and the private sector. The hearings and archived webcast are available online.

At the hearing, Committee Chair Barbara Boxer (D-CA) expressed her continued support for the Safe Chemicals Act (S. 696) and criticized the bipartisan Chemical Security Improvement Act (“CSIA,” S. 1009). Sen. Boxer took particular issue with the legislation’s effect on preempting state laws such as California’s Proposition 65, but nevertheless, vowed to continue working on the bill with the hope of enacting TSCA reform as soon as possible. Senator David Vitter (R-LA), a co-author of CSIA, said that he was already at work with Senator Tom Udall (D-NM) on amending his legislation to address the preemption concern.

Since the hearing, Congress has been in recess and there has been little news on how the amendment process is going. In the meantime, the CSIA’s advocates and detractors continue to make their case in the public forum. Last week, Steve Owens, who served as EPA assistant administrator for the Office of Chemical Safety and Pollution Prevention during President Obama’s first term, wrote on RealClearPolicy in support of the bill. Owens played down preemption concerns, arguing that TSCA was originally intended to preempt state efforts and that the CSIA provides for states to apply to EPA for a waiver that would keep state laws in place. He also pointed out that the CSIA’s sponsors had pledged to amend the bill to address other preemption issues. Earlier this month, Alex Formuzis of the Environmental Working Group criticized the CSIA and called on members of the public health and environmental community to rally behind Sen. Boxer’s efforts in shepherding strong TSCA reform legislation to the Senate floor. In California, state legislators introduced a mostly symbolic resolution that calls on Congress and the President to “respect the rights of states to protect the health of their citizens” and not enact the CSIA in its current form.

Chemical Safety Improvement Act May Be Overhauled in Senate Hearing Next Week.

Since its introduction in late May, the bipartisan Chemical Safety Improvement Act of 2013 (“CSIA,” S. 1009) has already had an eventful history which looks like it will get even more interesting next week when the Senate Environment and Public Works (“EPW”) Committee holds a day-long hearing on reforming federal chemical law. The hearing, scheduled for July 31, will focus on the CSIA but also consider other proposals to reform the 1976 Toxic Substances Control Act (“TSCA”) – the only major environmental statute that hasn’t been updated since its initial passage.

The CSIA, introduced by Senator David Vitter (R-LA) and the late Senator Frank Lautenberg (D-NJ), has already been the subject of two House committee hearings. The bill was introduced just weeks before the death of Sen. Lautenberg, who was known for his dedication to pollution protection and public health, and some have called for its passage as a tribute to his legacy. The CSIA is backed by industry and some environmental groups, but has been criticized by other environmental groups and consumer and health advocates who argue that the bill is critically flawed; for example, if passed, the law might override state consumer safety laws like California’s Proposition 65, which require warnings on products that contain certain chemicals. In California, Attorney General Kamala Harris and the state’s Department of Toxic Substances Control have expressed concern that the bill could not only preempt Prop. 65 but also derail the state’s nascent green chemistry regulations.

Senator Barbara Boxer (D-CA), who chairs the Senate EPW Committee and co-sponsored some of Sen. Lautenberg’s previous TSCA reform proposals, is reportedly planning a major overhaul of the bill “that would amount to starting over.” Sen. Boxer’s goal is to combine parts of the Chemical Safety Improvement Act with parts of the Safe Chemicals Act of 2013 (S. 696). The Safe Chemicals Act was introduced by Sen. Lautenberg in April 2013 without Republican support, and mirrors legislation that passed the Senate EPW committee last year. Details on the hearing, including the witness list, are not yet available.

Senators Announce Bipartisan Bill to Modernize TSCA.

The prospects for TSCA reform just improved considerably with Wednesday’s announcement of a bipartisan agreement to overhaul the chemical safety law.

Sen. Frank Lautenberg (D-NJ) and Sen. David Vitter (R-LA) led a group of 16 senators from both parties in unveiling the Chemical Safety Improvement Act of 2013 [PDF]. The compromise legislation has already been praised by industry groups, including the American Chemistry Council, as well as public health advocates like the Environmental Defense Fund.

The Act’s chief innovation is its framework for ensuring that all chemicals are screened for safety to human health and the environment. Under the new legislation, EPA would make safety determinations for chemicals based on intended conditions of use and a risk-based assessment integrating hazard, use, and exposure information.

New chemicals would have to first pass safety screening before entering the market. Chemicals already in commerce would also undergo safety evaluations, which would be prioritized based on the substance’s risk to human health and the environment, and high-priority chemicals would undergo further safety testing by EPA. In an effort to reduce duplicative testing, EPA would be authorized to rely on existing information as well as to collect safety data from chemical manufacturers. In addition, EPA would be required to evaluate risks to vulnerable populations, like children or pregnant women, in assessing the safety of each chemical.

The bill also authorizes EPA to employ a wide range of risk management measures on unsafe chemicals, from ordering additional labeling requirements to imposing an all-out ban.

As we previously reported, Sen. Lautenberg introduced a similar bill to modernize TSCA in April, but it only won support among his fellow Democrats. The new compromise bill was criticized by the Environmental Working Group as “unacceptably weak,” but its bipartisan support means it likely has a better chance at approval in the Senate.