EPA Backs Draft Bill to Amend Chemicals Law

Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...

May 18 — Draft legislation the Environmental Protection Agency has seen that would amend the Toxic Substances Control Act “is a clear improvement over current law,” an agency spokesman told Bloomberg BNA late May 17.

EPA's spokesman referred to draft legislation that would reconcile the House and Senate's separate TSCA bills: the TSCA Modernization Act of 2015 (H.R. 2576) in the House and the Frank R. Lautenberg Chemical Safety for the 21st Century Act in the Senate. Originally numbered S. 697, the Senate bill passed as an amendment to H.R. 2576.

(Click image to enlarge.)

TSCA Reform graphic

The bills would update TSCA, which hasn't had its core provisions changed since 1976, when gas cost 56 cents a gallon.

The draft of the reconciled legislation would address fundamental flaws that have hindered the EPA's ability to protect human health and the environment from chemical risks, the agency spokesman said by e-mail.

The agency understands that parties continue to work on further improvements to the draft, and the EPA stands ready to support the effort to finalize strong legislation to protect public health, the spokesman continued.

Next Legislative Steps

Sen. John Cornyn (R-Texas), the Senate majority whip, told Bloomberg BNA May 18 that he hopes to move compromise legislation revamping TSCA before the chamber breaks for its Memorial Day recess.

“We're very close,” Cornyn said.

Over in the House, after the negotiated text is finalized and introduced, the Rules Committee would establish time limits or other conditions of the floor debate.

House legislators plan to vote on the bill the week of May 23 without the support of some top House Democratic negotiators, Rep. John Shimkus (R-Ill.) told reporters May 17 (see related story).

Pallone, Tonko Raise Concerns

Reps. Frank Pallone (D-N.J.), ranking member of the House Energy and Commerce Committee, and Paul Tonko (D-N.Y.), ranking member of the House Energy and Commerce Subcommittee on Environment and the Economy, issued a May 17 statement that called the result of negotiations a “troublesome legislative framework that we simply cannot support.”

Reps. Gene Green (D-Texas) and Diana DeGette (D-Col.), both members of the House Energy and Commerce Committee, plan to support the negotiated text.

“For many years, we have worked to reform the Toxic Substances Control Act to direct the U.S. Environmental Protection Agency to protect Americans from harmful chemicals,” Green and DeGette said in a statement.

“Right now, we are closer than ever before to making reform a reality,” the said. “The proposal released yesterday is a clear improvement over current law and addresses the fundamental flaws of TSCA that expose the public to dangerous chemicals. It is long past time that Congress update this law, and we stand ready to work toward a final compromise that will have broad, bicameral support.”

The draft bill, according to a copy obtained by Bloomberg BNA, is called the Frank R. Lautenberg Chemical Safety for the 21st Century Act to honor the late Democratic senator from New Jersey who sought for many years to modernize TSCA.

The draft bill includes many of the provisions and approaches from the previous Senate bill.

Boosting EPA's Chemicals Management

Elements of the negotiated text that would help the EPA manage chemicals include those that would:

  •  require the EPA to evaluate chemicals in commerce against a risk-based safety standard with clear and enforceable deadlines;
  •  require the EPA to affirmatively determine that new chemicals meet the safety standard before those substances could be made, sold or distributed in the U.S.;
  •  give the EPA more authority to require companies to submit or, when necessary, generate new health and safety data for untested chemicals;
  •  increase the public transparency of chemical information; and
  •  authorize fees to help the EPA carry out its new responsibilities.


State-Federal Relationship Provisions

State laws and regulations likely to require chemical manufacturers to produce the same information that the EPA could mandate under certain provisions of the proposed law would be preempted under the draft text describing the State-Federal Relationship (Sec. 13).

Otherwise, similar to both the House and Senate bills, the negotiated text would grandfather existing state laws and regulations addressing chemicals.

The negotiated text also would allow states to “adopt or enforce any rule, standard of performance, risk evaluation, scientific assessment, or any other protection for public health or the environment” that it adopted to comply with another federal law.

Similar to the bill the Senate passed unanimously Dec. 17, the draft text would establish a “regulatory pause” preempting states from regulating chemicals once the EPA defined the scope of a chemical risk evaluation.

States can “continue to enforce any statute enacted, or administrative action taken, prior to the date on which the administrator defines and publishes the scope of a risk evaluation,” the negotiated text said. Similar language was in the Senate bill.

States Could Seek Waivers

In addition, while the EPA conducts its risk evaluation, states could seek waivers allowing them to manage a chemical's risks for certain reasons. For example, a state could seek a waiver if it has compelling conditions that warrant its need to protect the health of its residents or its environment.

Once the EPA would complete its risk evaluation and issue a final rule or other action addressing a chemical, states would, typically, be preempted from passing new laws and regulations under the negotiated text.

The draft legislation distinguishes between information that is protected from disclosure, meaning neither the EPA nor states could release that information, and information that could be disclosed (Section 14).

Information that can be claimed confidential includes the specific identify of a chemical; information describing how the chemical is made or processed; marketing and sales information; information identifying a supplier or customer; the formulas of chemical mixtures; and the specific volume of a chemical that a company makes or imports.

Emerging Chemical Assessment Technologies

The draft legislation's provisions on chemical testing aim to reduce the number of laboratory animals sacrificed or injured for toxicity tests (Sec. 4).

Ways the draft legislation would accomplish that goal include directing the EPA to the extent practicable and scientifically justified to use existing toxicity, computational, modeling and other information to evaluate chemicals.

The draft bill also would require the EPA, within two years of the law's enactment, to develop a plan to promote the development and implementation of alternative test methods and strategies to reduce, refine or replace vertebrate animal tests. The draft includes illustrative types of technologies and tiered testing methods that could help reduce the use of experimental animals.

The EPA would be required to report to Congress every five years concerning its progress in implementing that plan.

Initial Reaction

Andy Igrejas, director of Safer Chemicals, Healthy Families, a coalition of environmental, health and other organizations, issued a statement describing benefits and concerns the coalition has about the draft legislation.

The draft “contains several reforms that would empower EPA, but it also restrains EPA and especially state governments in new and unacceptable ways,” Igrejas said.

“There are loopholes for imported products that mean toxic chemicals could hitch a ride into our homes through toys, furniture and clothing made overseas. Recent and pending state restrictions on toxic flame retardant chemicals will be nullified in favor of federal rules that are years away and which may be weaker than what states are proposing right now,” Igrejas said.

The Toy Industry Association, by contrast, issued a statement congratulating both chambers for their compromise bill.

“Reform of the Toxic Substance Control Act (TSCA) will strengthen the federal chemical regulatory system and is a top policy priority for the toy industry,” the Toy Industry Association said.

“We continue to seek a federal uniform policy for regulating chemicals across all 50 states that keeps American children and families safe while fostering innovation. This compromise bill proves we are moving in that direction,” said Steve Pasierb, the association's president.

With assistance from Anthony Adragna in Washington.

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bna.com

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

For More Information

The draft legislative text is available at http://src.bna.com/e7B.

Request Environment & Energy Report