House Republicans Release Draft Toxic Substances Control Act (TSC

Mark N. Duvall

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House Republicans Release Draft Toxic Substances Control Act (TSCA) Modernization Legislation

by: Mark N. Duvall of Beveridge & Diamond PC - Environmental, Land Use, and Litigation Law

Thursday, March 6, 2014

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With the release of a February 27, 2014 discussion draft for a bill to be known as the “Chemicals in Commerce Act” (“CICA”),^[1] the Republican-controlled House of Representatives has reentered and potentially reinvigorated discussions on modernization of the Toxic Substances Control Act (“TSCA”). The discussion draft was unveiled by Rep. John Shimkus (R-IL), Chairman of the Environment and the Economy Subcommittee of the House Energy and Commerce (“HEC”) Committee.^[2] As drafted, the CICA would make substantial changes to regulation of chemicals in the United States. However, it is already raising some controversy.

Background and Senate Actions

The House draft legislation marks a significant event in the years-long series of efforts to reform TSCA, the core provisions of which have remained unchanged since the law’s enactment in 1976. TSCA modernization has been on the legislative radar for a decade. From 2005 through April 2013, a number of bills to overhaul U.S. chemicals management were introduced, all by Democrats. These efforts were led largely by Sen. Frank Lautenberg (D-NJ) in the Senate, and Rep. Bobby Rush (D-IL) in the House. The most recent Democratic TSCA bill was the Safe Chemicals Act (“SCA”), S. 696,^[3] introduced by Sen. Lautenberg in April 2013. The SCA has 28 co-sponsors, all from the Democratic caucus. For more information and analysis of the SCA, see our previous client alert.

The game changed in May 2013 with the introduction, again by Sen. Lautenberg, of the bipartisan compromise Chemical Safety Improvement Act (“CSIA”), S. 1009. See our previous client alert on the CSIA here. The CSIA currently has 25 co-sponsors, 13 Republicans and 12 Democrats. Sen. Lautenberg passed away in June 2013, and the bill has since been shepherded by its main Republican sponsor, Sen. David Vitter (R-LA), and Senator Lautenberg’s successor as the Chairman of the Subcommittee on Superfund, Toxics and Environmental Health of the Senate Environment & Public Works (“EPW”) Committee, Tom Udall (D-NM). The EPW held a hearing in July 2013, focusing on issues of contention such as the scope of federal preemption of state chemical restrictions, the safety standard, data requirements, and deadlines.^[4] While EPW Committee Chairman Barbara Boxer (D-CA) has expressed continued support for the SCA and opposition to the CSIA as currently written, the bipartisan CSIA is seen as the most politically viable vehicle for possible TSCA modernization. Revisions to the CSIA are anticipated, although the timing is unclear.

Summary of House Discussion Draft and Comparison to Bipartisan Senate Bill

The draft CICA parallels many provisions of the CSIA. Among other measures, the draft CICA would:

Require EPA to evaluate chemical substances against a safety standard and regulate them as appropriate. As with the CSIA, the draft CICA would mandate that EPA determine, on a prioritized basis, whether chemical substances meet a safety standard under the intended conditions of use. If they are found not to meet the safety standard, EPA would have to impose restrictions or requirements proportional to the risks. This would be a fundamental change to current TSCA, which contains no such mandate to review “existing” chemical substances, i.e., chemical substances that are listed on the TSCA Inventory and not new. The draft CICA does not provide a schedule or deadlines for evaluations and regulations.
Modify the safety standard. Similar to the CSIA, the draft CICA would keep a significantly modified version of TSCA’s current “unreasonable risk of harm to human health or the environment” safety standard. (Unlike the CSIA, the draft CICA would not define the safety standard, but it would use the same safety standard as in the CSIA.) Unlike under current TSCA, this safety standard evaluation under the draft CICA would look to intended conditions of use, and would be based only on “best available science” in accordance with weight of the scientific evidence. Economic or other considerations would not be taken into account until the stage of imposing requirements or restrictions on a chemical substance found not to meet the safety standard. EPA would consider, among other scientific factors, exposures for the specific intended uses, and subsets of exposure (including potentially differentially exposed or susceptible subpopulations, such as infants, children, pregnant women, workers, and the elderly).
Establish a prioritization process for safety determinations. EPA would designate chemical substances as high or low priority “as soon as feasible.” The process and factors would differ somewhat from that set forth in the CSIA. Low-priority chemical substances would not be subject to a safety determination (unless redesignated). Priority designations would be subject to public notice and comment, and low-priority designations, but not high-priority designations, would be subject to judicial review. Unlike the CSIA, the draft CICA has no provision for a separate safety assessment prior to a safety determination, nor does the legislative language explicitly limit EPA to consideration of risks to human health and the environment when making safety determinations.
Set forth requirements for chemical restrictions and risk management. Unlike under current TSCA, EPA would not be constrained to select the least burdensome option, which has proven to be a difficult hurdle. There would also be provisions for expedited consideration and regulation. Risk management rules would be subject to judicial review. The CICA would maintain TSCA’s current “substantial evidence” standard for judicial review of most rules and chemical restrictions adopted by EPA. Risk management rules would not apply to replacement parts for articles manufactured prior to the applicable compliance deadline.
Expand EPA’s data gathering authority. As under the CSIA, EPA would no longer have to go through rulemaking and establish potential unreasonable risk to require testing or development of new information. Instead, it could issue an order. EPA would be required to obtain greater amounts of use information for its decision-making. EPA would also have to develop lists of public and confidential information on chemical substances.
Require policies for information quality and best available science. EPA would be required to establish such policies, per criteria set forth in the CICA, within one year through notice and comment rulemaking. The draft bill would also aim to reduce testing on vertebrate animals and would require certain guidance on nomenclature issues (same as in the CSIA).
Require additional reporting. This would include maintenance of a current list of active and inactive chemical substances in commerce, essentially a one-time “Inventory reset” under which “inactive” substances would have a streamlined on-ramp for resuming active manufacturing. EPA “shall require manufacturers and may require processors” to report for this Inventory reset, a softening of the CSIA’s mandatory extension of the reporting requirement to processors. General reporting requirements, like the Chemical Data Reporting (“CDR”) Rule, would be expanded to processors as well as manufacturers.
Expand protection for confidential business information. Among other modifications, specific chemical identity would be protected upon satisfactory demonstration to EPA of the need for confidentiality and the provision of a generic name. Certain information, such as health and safety information on commercially distributed substances or information needed to protect health or the environment, could not be protected from disclosure. Provisions for affirmatively promoting public availability of non-confidential information are somewhat narrower than under the CSIA.
Clarify that TSCA new chemical or CDR provisions do not apply to chemicals extracted for recycling or reclamation, by reaction or otherwise. This would exempt, for example, extraction of solvents from a complex solvent mixture, or extraction of metals from metal compounds.
Expand on TSCA’s current federal preemption of state chemical restrictions. The draft CICA preemption provisions differ somewhat from those in the CSIA. Designation of a chemical substance as low priority would preempt both existing and future state laws and regulations. EPA actions taken under TSCA before enactment of the CICA would continue to preempt state laws and regulations. The CSIA’s exemption for reporting requirements or environmental requirements that do not impact on the manufacture, processing, distribution, or use of a chemical substance is omitted. Unlike TSCA and the CSIA, there is no waiver provision.
No impact on tort suits. The draft CICA would omit the controversial provision in the CSIA regarding use of safety determinations in tort suits. To rebut the idea that EPA actions under an amended TSCA would preempt tort suits, the draft CICA includes both a savings clause for tort suits and changes the scope of preemption to a state or local “law or regulation.
Modify import and export provisions, citizens’ petition procedures, and certain other provisions. The draft CICA’s import provisions do not include the CSIA’s definitional change that some viewed as extending import certification requirements to imported articles, or the CSIA’s broad notice requirements. The draft CICA’s export provisions exclude articles, a reduction in scope from current TSCA. Instead, import certification would be limited to chemical substances designated as high priority or subject to prohibitions or restrictions under Sections 5 or 6.
Slightly increase penalties for violations of TSCA. Criminal penalties would also be available under limited circumstances.

The draft bill language Rep. Shimkus unveiled appears to respond to some of the concerns raised by critics of the Senate bill, including limiting some of its preemption provisions, expanding EPA flexibility for prioritizing chemicals for assessment, stripping language some said could preempt toxic tort claims, and requiring consideration of vulnerable subpopulations. Additionally, the discussion draft language allows judicial review of low-priority designations and requires regulations of any substances designated as “high-priority.”

Reactions to the Draft Legislation

Deep divisions among legislators and stakeholders were highlighted soon after the draft legislation’s release. The discussion draft has not yet been released as a bill so as to allow time to gather official co-sponsors. Thus, it is unclear whether the CICA will earn a designation as bipartisan like its Senate counterpart, although that is likely. However, Rep. Henry Waxman (D-CA), who remains a dominant Democratic influence on environmental and health issues despite announcing plans to retire at the end of the current term, has expressed opposition to the CICA as drafted.^[5] Bipartisan discussions in the House are ongoing.

NGOs such as Safer Chemicals, Healthy Families and the Natural Resources Defense Council have strongly opposed to the draft CICA, declaring it insufficient in terms of information gathering, public protection, and deadlines, and still excessive in terms of preemption.^[6] Industry and trade groups, on the other hand, have welcomed the draft legislation as an important step forward.^[7]

Next Steps

The draft CICA may be revised prior to its official introduction to reflect stakeholder input and further legislative negotiations. Rep. Shimkus has indicated that he plans to hold a hearing or hearings on the draft bill in March 2014, with the goal of introducing a bill in April 2014 for markup.

Political factors make the likelihood of passage of a TSCA modernization bill in the remaining months of the 114th Congress challenging. Nonetheless, developments with the CICA (and the CSIA in the Senate) merit close attention. These pieces of legislation, and the discussions and negotiations surrounding them, will help determine the changes that will ultimately be made to the primary U.S. chemicals management law.

^[1] Chemicals in Commerce Act, H.R. __ [Discussion Draft, Feb. 27, 2014], available at http://energycommerce.house.gov/sites/republicans.energycommerce.house.gov/files/analysis/CICADD.pdf.

^[2] House Energy & Commerce Committee press release, “Shimkus Unveils Discussion Draft of Chemicals in Commerce Act,” Feb. 27, 2014, http://energycommerce.house.gov/press-release/shimkus-unveils-discussion-draft-chemicals-commerce-act (linking to bill, summary, and highlights).

^[3] Beveridge & Diamond, P.C., “‘Safe Chemicals Act,’ First TSCA Reform Bill of 113th Congress, Reintroduced,” April 16, 2013, http://www.bdlaw.com/news-1462.html.

^[4] See Beveridge & Diamond, P.C., “Senate TSCA Hearing Highlights Perils of Path Forward for Updated Chemicals Management Framework,” August 15, 2013, http://www.bdlaw.com/news-1519.html. Mark Duvall of Beveridge & Diamond testified in his personal capacity at the hearing.

^[5] Rep. Waxman Statement on Republican TSCA Reform Bill Draft, Feb. 28, 2014, http://democrats.energycommerce.house.gov/index.php?q=news/rep-waxman-statement-on-republican-tsca-reform-bill-draft.

^[6] SCHF press release, “House Chemical Bill Fails to Protect Public from Toxic Chemicals,” Feb. 28, 2014, http://www.saferchemicals.org/2014/02/house-chemical-bill-fails-to-protect-public-from-toxic-chemicals.html; NRDC press release, “House Chemicals Bill Would Undermine Health and Safety,” Feb. 28, 2014, http://www.nrdc.org/media/2014/140228.asp; see also Megan R. Wilson and Tim Devaney, “House GOP pushes toxic chemicals reform,” The Hill (Feb. 27, 2014), available athttp://thehill.com/blogs/regwatch/pending-regs/199528-house-gop-pushes-toxic-chemicals-reform (quoting Richard Denison, Environmental Defense Fund, as saying “This is a starting line in the House, not the finish,” but welcoming the Republican effort).

^[7]American Chemistry Council, press release, “ACC Welcomes Draft House Legislation To Update TSCA,” Feb. 28, 2014, http://www.prnewswire.com/news-releases/acc-welcomes-draft-house-legislation-to-update-tsca-247664931.html (“applaud[ing]” the draft CICA’s “balanced approach”); American Cleaning Institute, Press Release, “ACI Statement on Introduction of ‘Chemicals in Commerce’ Draft Legislation,” Feb. 28, 2014, http://www.cleaninginstitute.org/aci_statement_chemicals_in_commerce_draft_legislation/; Greg Bertelsen, National Association of Manufacturers, “Shimkus Takes Important Step Towards TSCA Reform,” ShopFloor Blog (Feb. 28, 2014), http://www.shopfloor.org/2014/02/shimkus-takes-important-step-towards-tsca-reform.