Udall Set to Offer TSCA Reform Legislation With Industry Fees, Limited State Preemption

By Pat Rizzuto

March 9 — Federal preemption of state chemical regulations would be narrowed under a bill to modernize the Toxic Substances Control Act that Sen. Tom Udall (D-N.M.) will introduce March 11, sources who have tracked the TSCA reform effort for years told Bloomberg BNA.

Chemical manufacturers also would pay fees for specific services the Environmental Protection Agency provides as it reviews chemicals they would like to make or that already are in U.S. commerce, the sources said.

States, however, could not enforce compliance with federal chemical standards, because state adoption of federal standards into state law would be precluded under the bill, sources said.

The Senate Environment and Public Works Committee has scheduled a March 18 hearing on TSCA, a committee aide confirmed March 9. Legislation normally must be introduced at least one week before a hearing on it can be held.

Staff from Udall's and other senators' offices reportedly continued negotiating final language in the forthcoming bill over the weekend.

Bill Builds on Chemical Safety Improvement Act 

At issue is a new TSCA reform bill that four individuals BNA spoke with said builds upon the Chemical Safety Improvement Act, S. 2009, that the late Sen. Frank Lautenberg (D-N.J.) and Sen. David Vitter (R-La.) jointly introduced in 2013, but also addresses many concerns nongovernmental organizations have raised.

NGOs raised numerous concerns about the Lautenberg-Vitter bill and a draft variation of it crafted by Sens. Vitter and Udall that Sen. Barbara Boxer (D-Calif.) released in September 2014.

Key NGO concerns in 2013 and 2014 included:

• the bill's preemption of state regulation of chemicals designated to be low priorities by the EPA;

• during the period after the EPA designates a chemical a high priority, states are largely precluded from acting, even though it may be years before the EPA decides whether or not to regulate the chemical; and

• the bill's silence on funding the EPA for the increased workload the bill would impose.


Core Elements Retained

As in previous versions of the Chemical Safety Improvement Act and some other TSCA-reform measures, Udall's forthcoming legislation would require the EPA to review chemicals in commerce to determine whether the compounds posed an unreasonable risk to human health or the environment, sources told BNA.

The EPA would designate chemicals to be either high or low priorities for further review. The bill then would direct the agency to assess the risks of high-priority compounds to determine whether regulations or other risk management controls were needed.

Changes on Preemption 

Two or more individuals who had seen portions of the anticipated bill confirmed each of the following details in interviews with BNA.

Regarding preemption, the draft legislation would:

• allow states to regulate chemicals the EPA designates to be low priorities;

• allow states to legally challenge the EPA's designation of a chemical as a low priority if the state is able to meet certain criteria in the bill;

• require the EPA—after it has designated a chemical to be a high priority—to scope out within a specified number of months the uses of the chemical, exposure scenarios and hazards it would analyze through its risk assessment;

• allow states to regulate a high-priority chemical if the state regulation addressed a use outside the scope of the EPA's risk assessment;

• preempt states from regulating high-priority chemicals if the state's regulation would address a use within the scope of the EPA's assessment;

• specifically exempt existing and future regulations issued under California's Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986; and

• grandfather other state chemical regulations, meaning if the bill became law, only future regulations would be preempted.


Mixed Reviews 

Some individuals BNA spoke with said these changes on preemption were significant compromises made by chemical manufacturers, states and NGOs

One TSCA attorney said so many compromises had been made in—and yet so many concerns continue to be raised about—Udall's draft that it would be difficult to predict whether chemical manufacturers or Republicans in Congress that promote states' rights will support the legislation once it is released.

“Senators Udall and Vitter have made improvements to their legislation over the past two years,” Safer Chemicals, Healthy Families, wrote March 9 in an open letter to senators. The letter was signed by 20 environmental, educational and medical organizations as well as the International Association of Fire Fighters and United Steelworkers.

Additional changes are needed, however, the coalition said.

Safer Chemicals, Healthy Families said it agreed with concerns the general counsel for California's Attorney General raised in a March 8 letter to Boxer.

General Counsel Brian Nelson said California's Attorney General had three primary concerns about the Udall draft:

• the preemption of states' ability to protect their residents and environment years before potential federal regulations would take effect;

• the unduly burdensome standards applicable to state waivers from preemption; and

• the inability of state authority to replicate federal standards in state statutes.


State preemption of high-priority chemicals years before EPA action “presents the most significant and—absent amendment—insurmountable concern,” Nelson wrote.

His concern, and that of Safer Chemicals, is that it could take the EPA seven years or more to manage the risks a high-priority chemical poses and that state actions on that chemical would, in many or most cases, be preempted.

Nelson said he also is concerned that the draft bill would specifically preclude states from adopting chemical regulations already established by the federal EPA.

That provision would mean states could not enforce chemical regulations as they already commonly do for air, water, pesticide and other rules, he wrote.


Two or more sources also confirmed each of the following details regarding funding for the EPA:

• the bill would authorize the EPA to establish fees for various services it provides chemical manufacturers;

• the fees chemical manufacturers would pay would be capped at $18 million or at a specified percentage of the EPA chemicals program budget;

• if Congress allowed the budget it allocates for the EPA's chemicals program to drop below a specified threshold, industry no longer would have to pay the authorized fees; and

• fees would be paid into a dedicated fund to ensure that the money goes to the agency's chemicals program.


Other Details 

Two or more sources also confirmed the following two details regarding Udall's anticipated legislation.

The bill would require the EPA to designate at least 10 chemicals as high priorities each year for the first three years. The high-priority designation would kick off a five- to seven-year deadline by which the agency is to assess the risks of the chemicals and manage unreasonable risks.

The number of chemicals to be designated annually as high priorities would increase to 20 each year three years after the bill would become law and to 25 annually five years after enactment.

The bill would establish an Interagency Sustainable Chemistry Program. That program would, essentially, be identical to one Sen. Christopher Coons (D-Del.) proposed in 2014 via the Sustainable Chemistry Research and Development Act, which did not move.

Safer Chemicals, Healthy Families raised an additional concern in its open letter regarding a provision it said Udall's draft bill contains.

The provision addresses the EPA's regulation of chemicals in manufactured goods, such as carpets, computers and cars.

The EPA would have to prove that the use of each chemical in each product posed an unreasonable risk, the coalition's letter said.

That requirement would weaken the EPA's ability to ensure imported products do not contain chemicals of concern such as formaldehyde, and it would substantially slow the agency in addressing an issue of central concern to the public, the coalition said.

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

The general counsel letter from California's Office of the Attorney General is available at http://op.bna.com/env.nsf/r?Open=prio-9ufrk3.

Safer Chemicals, Healthy Families letter is available at http://op.bna.com/env.nsf/r?Open=prio-9ufn8g.