TSCA Reform Faces Uncertain Funding Future

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By Brian Dabbs

June 8 — Lawmakers on Capitol Hill continue to celebrate passage of the bipartisan bill to overhaul the nation's chemical law, but questions loom over funding for the Environmental Protection Agency's new obligations under the statute, lawmakers and legal experts told Bloomberg BNA June 8.

Sen. Tom Udall (D-N.M.), a primary negotiator on the bill, told reporters June 8 current funding levels for chemical regulation provide the EPA with the resources necessary to set the reforms in motion. Several House and Senate appropriators, however, skirted questions on funding for Toxic Substances Control Act reform in the coming fiscal year.

Asked whether the law's implementation is likely to receive adequate funding in fiscal year 2017, House Appropriations Chairman Hal Rogers (R-Ky.) responded guardedly.

“It remains to be seen,” he told Bloomberg BNA June 8.

The Frank R. Lautenberg Chemical Safety for the 21st Century Act, which passed on June 7 and is currently en route to President Barack Obama's desk, revised TSCA, a law enacted in 1976.

The legislation (H.R. 2576) requires review of all commercial chemicals, as well as chemicals new to the market, using a risk assessment.

Lawmakers and advocacy groups criticized the previous law because it did not provide for the review of the roughly 85,000 chemicals in U.S. commerce, many of which may threaten human health and the environment.

The bill is now headed to President Obama's desk, and he is expected to sign it.

Current Levels Enough for Launch

Speaking June 8 at a news conference with Sen. David Vitter (R-La.), another chief architect, and other TSCA reform leaders, Udall vowed to ensure funds are in place for the EPA to move forward with implementation.

The roughly $56 million annual allocation for the current TSCA statute will allow the EPA to make headway towards its first deadline, a mandate to select the first 10 chemicals to be reviewed within six months of enactment.

The New Mexico lawmaker serves as the ranking member of the Senate Appropriations Environment and Interior Subcommittee, the panel that funds the EPA.

“Clearly what I'm going to be fighting for is to make sure that EPA has the funds to do the job,” Udall said, while pointing to asbestos and 1-Bromopropane as candidates for the first round of reviews.

The subcommittee is set to convene a preliminary markup June 14, followed by a full committee markup two days later, a staffer for Subcommittee Chairman Lisa Murkowski (R-Alaska) confirmed to Bloomberg BNA June 8. Murkowski praised TSCA reform passage in a June 8 statement but didn't mention funding.

A spokeswoman for Murkowski, Karina Peterson, said the Alaska lawmaker is also committed to securing proper funding.

“Senator Murkowski wants to ensure this landmark bill can succeed and operate in the manner that is intended,” Peterson told Bloomberg BNA. “She and her colleagues on the appropriations committee are in discussions as to what funding is needed in order to implement the reforms.”

A spokesman for Senate Appropriations Chairman Thad Cochran (R-Miss.) didn't respond to a Bloomberg BNA request for comment.

Fee Supplement

Supporters of the new law routinely champion the $25 million in annual industry fees the legislation is poised to generate.

Those fees will provide a critical lifeline for the EPA as implementation advances, Udall said.

The fees aren't likely, however, to flow into the agency for a substantial amount of time, said Judah Prero, counsel at Sidley Austin's LLP environmental practice and former counsel to the American Chemistry Council.

“Once the regulations are rolled out and the rules are implemented, then the fees will start to come in,” Prero told Bloomberg BNA. “Implementation will likely be funded wholly by appropriations to start. Then the fees will supplement the appropriations.”

The law requires EPA to set fees through rulemaking, only after consulting with affected industries. That rulemaking could occur within a year of enactment, Mark Duvall, a Beveridge and Diamond environmental attorney, told Bloomberg BNA.

Back Door Leverage

Duvall pointed to a provision that requires Congress to appropriate for EPA, at a minimum, the fiscal 2014 TSCA funding level or the agency won't be allowed to impose fees, a back door type of leverage to ensure adequate funding is maintained.

“Obviously Congress holds the purse strings and they'll do what they choose,” Duvall said. “But Congress works in funny ways. They just gave EPA a whole lot more responsibility and deadlines, and complained a lot of the prospect of EPA failing to meet deadlines, but they don't seem intent on appropriating more resources. Sometimes there is a disconnect.”

An EPA spokeswoman, Monica Lee, declined to comment to Bloomberg BNA.

“EPA is not in a position to speculate on specifics until the President signs the bill,” she said in response to a funding inquiry.

House Energy and Commerce Environment Subcommittee chief John Shimkus (R-Ill.), another architect and the only House member at the June 8 press conference, told Bloomberg BNA appropriators largely the backed the bill, indicating they'll be willing to provide the right funding.

“This is a law that had to change; everyone thought it was broken,” Shimkus told Bloomberg BNA. “So we should make sure that we give it a chance to work through the funding mechanism.”

The House passed the legislation 403-12 vote in late May.

Prero said lawmakers are likely to get pressure from industry and health advocates, many of which have declared support for the legislation, in the coming months to adequately fund the new law.

During debate before the uncontested voice vote that passed the measure in the Senate, Sen. Barbara Boxer (D-Calif.) said “an EPA that is not funded right, I say to my dearest friend on the floor today, is not going to do anything. So the states will have the ability to do it. I would hope we would fund the EPA so we have a strong federal program and strong state programs as well. But we will have to make sure that the EPA doesn't continually get cut.”

To contact the reporter on this story: Brian Dabbs in Washington at bdabbs@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com