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By Pat Rizzuto
May 24 — On a 403-12 vote, the House approved legislation May 24 that would give the Environmental Protection Agency more authority to evaluate and control the nation's industrial chemicals.
The Senate is expected to quickly take up—and easily pass—the bill, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576). It may reach the Senate floor May 25 or 26 under unanimous consent, a procedure under which the measure is deemed approved unless a single senator objects.
The White House supports the legislation, which would give the EPA more authority to obtain toxicity, exposure and other information about chemicals, eliminate some of the Toxic Substances Control Act's requirements that make it hard for the EPA to regulate chemicals in commerce, and require the agency to assess the risks of the chemicals of greatest concern that are in commerce. In its current form, the law has no such mandate.
Rep. John Shimkus (R-Ill.), who spearheaded the House effort that led to the bill's adoption, described H.R. 2576 as “sweeping legislation,” “the culmination of a multiyear, multi-Congress effort,” and “the first consequential update of the Toxic Substances Control Act, or TSCA, in 40 years.”
“The end result of our work is a vast improvement over public law,” said Shimkus, chairman of the House Energy and Commerce Subcommittee on Environment and the Economy.
During the nearly four decades since TSCA became law, said Rep. Rob Woodall (R-Ga.), “science has changed, technology has changed, consumer demands have changed and yet the way that we regulate these chemicals has not.”
Rep. Frank Pallone (D-N.J.), ranking member of the House Committee on Energy and Commerce, supported the bill saying “reforming this law is about preventing injuries and saving lives. It's about protecting vulnerable populations.”
Had TSCA worked effectively, “we would not have Bisphenol-A in baby bottles or toxic flame retardants in our children's pajamas and in our living room couches and exposure to asbestos decades ago,” Pallone said.
He referred to the 1991 decision of the U.S. Court of Appeals for the Fifth Circuit, Corrosion Proof Fittings v. EPA, which overturned the agency's bid to ban asbestos.
“The court overturned it because of serious limitations on EPA's authority. That court decision came down 25 years ago. Imagine the lives that could have been saved and the injuries that could have been prevented if that ban had stood,” Pallone said.
Rep. Paul D. Tonko (D-N.Y.), who opposed the bill, acknowledged it would improve some aspects of managing chemicals in the U.S.
“EPA gains new authorities and resources. The regulatory bar to testing is lowered, allowing EPA to acquire more information about chemicals. And, the ‘least burdensome' standard that essentially has prevented EPA from regulating chemicals even when there was overwhelming evidence of harm has been removed,” Tonko said.
“One of our caucus’ top priorities—expediting the review of persistent, bioaccumulative, and toxic substances (PBTs) was largely retained. And the bill requires EPA to consider the most vulnerable populations,” Tonko said.
“But for every positive step to protect public health and the environment there are numerous steps back that undermine those goals,” he said.
Tonko opposed the bill because of provisions that would prevent states from regulating chemicals even though the EPA has not decided whether it would regulate them. That period, during which a chemical is unregulated by either states or the EPA, is called the “preemption pause.”
“Let us call the pause exactly what it is—unnecessary and precedent setting. It may be decades before we see the health benefits of this bill, but I fear it is only a matter of time before more and more bills come to the floor that prevent state regulation before a final federal agency action. It is a terrible policy, and we should not encourage it. It opens the door to unwelcome and dangerous precedent,” Tonko said.
Rep. Hank Johnson Jr. (D-Ga.) voted for the bill but shared Tonko's concerns about the preemption pause.
“This body has never passed a law that denied states the ability to act before there is a federal standard in place,” Johnson said.
“We will create an almost three-year limbo period where a chemical under review is essentially unregulated by either state or federal laws. Meanwhile the public is subjected to potentially dangerous chemicals. This is unheard of in our existing consumer protection legal standards and will be to the detriment of the American public,” Johnson said.
Pallone said H.R. 2576 was not the bill Democrats would have written.
The legislation would, however, make critical improvements to current law, he said.
“I'm happy to support this bill to move forward with more protection for public health, for the environment, for vulnerable populations and for vulnerable communities,” Pallone said. “While this is a compromised bill, it is a long overdue step forward in protecting families and communities from toxic chemicals.”
On the other side of Capitol Hill, Senate Republican leaders said they were confident of quick passage even as they steered clear of discussing strategy, including whether they had enough support to pursue passage under unanimous consent.
“It looks very good,” Sen. John Cornyn (R-Texas), the Senate Majority Whip, told reporters May 24.
“I think we could have some news on that” floor strategy shortly, he said.
Sen. Charles Schumer (D-N.Y.), a member of the Senate Democratic leadership, told Bloomberg BNA May 24: “I think it’s likely to pass and become law.”
Schumer said he has reservations about the way the bill would preempt certain state regulation of chemicals but is resigned to its passage.
Sen. Dick Durbin (D-Ill.), the Democratic whip, said Democrats discussed the prospect of quick Senate approval at the Senate policy lunch earlier in the day.
“It’s moving,” Durbin told reporters. “There were good comments today in the [Democrats’] lunch and I think there’s a very good chance we can bring that forward,” he said.
Shimkus said the real test of the legislation will be the EPA's implementation and finding out whether the law will do what legislators have said it will.
“We needed a new TSCA and we’re getting one,” said EPA Administrator Gina McCarthy who spoke with Bloomberg BNA May 24. “It will be earth changing for EPA. We’re going to be a player for first time in decades on toxics. It’s going to be a risk-based standard for the first time. It’s quite remarkable.”
“I keep my fingers crossed,” McCarthy said as she spoke with Bloomberg BNA before the House vote. “I’m excited. That’s going to give us a lot more ability to look at what is in existing products.”
One Republican highlighted a provision in the bill that may offer a means to block the EPA's ability to regulate chemicals.
Rep. Marsha Blackburn (R-Tenn.) said she understood H.R. 2576 adds a new provision to Section 9 of TSCA that would limit the EPA's ability to promulgate a rule that would restrict or ban a chemical if the agency already manages the risks of that chemical through a different statute. The provision also would apply, she said, if another agency already regulates that chemical in a way that sufficiently protects against its risks.
That provision, she said, could force the agency to explain why it would need any further regulation of methylene chloride or trichloroethylene, Blackburn said.
The EPA plans to propose rules, authorized under Section 6 of TSCA, to ban or restrict particular uses of trichloroethylene, n-methylpyrrolidone and methylene chloride (57 DEN A-2, 3/24/16).
With the assistance from Dean Scott, David Schultz and Anthony Adragna in Washington.
To contact the reporter on this story: Pat Rizzuto in Washington at email@example.com
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