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“Safe Chemicals Act,” First Toxic Substances Control Act (TSCA) Reform Bill of 113th Congress, Reintroduced

On April 10, 2013, Senator Frank Lautenberg (D-NJ) reintroduced the “Safe Chemicals Act” to “amend the Toxic Substances Control Act (TSCA) to ensure that risks from chemicals are adequately understood and managed.”[1] The 2013 bill, S. 696, is identical to the version of the Safe Chemicals Act that was approved by Democrats in the Senate Environment and Public Works (EPW) Committee in December 2012 on a party line vote, but which died at the end of the 112th Congress having seen no further activity.  

Beveridge & Diamond has described and analyzed the contents of the bill in previous alerts.[2] In summary, the bill would make numerous substantial changes to current law, including:

  • Imposing a new safety standard of “reasonable certainty of no harm,” including to vulnerable populations, considering aggregate exposures and relevant cumulative exposures.

  • Requiring minimum information sets for all new and many existing chemicals, and prior notification for a wide range of new uses, including significantly increased volumes.

  • Expanding reporting and testing requirements, including requirements for distributors.

  • Instituting an ambitious and detailed new scheme for EPA screening, categorization, and prioritization for both new and existing chemicals, with expedited action for substances of very high concern.

  • Requiring EPA to publish in-depth safety standard determinations for large numbers of priority chemicals, and to impose new conditions for the chemicals in the determinations if necessary for the chemicals to meet the safety standard.

  • Maintaining an “active inventory” of chemicals in commerce.

  • Narrowing confidentiality protections, including by deeming chemical identity generally ineligible for protection except under very limited circumstances and burdensome procedures; expanding public access to information.

  • Adding new import and export requirements.

  • Imposing a more deferential standard for judicial review of EPA rules.

  • Expanding provisions allowing citizens’ suits and petitions.

  • Establishing various new research programs, including biomonitoring and green chemistry.

  • Eliminating preemption of state and local chemical regulations.

With the most recent reintroduction, Sen. Lautenberg has taken a forceful and optimistic tone, saying, “It’s time to break away from the chemical industry lobbyists and listen to concerned parents, pediatricians, and nurses who are demanding change. . . . Now the tide is turning.”[3]

Senator Lautenberg, who has announced that he will not seek reelection in 2014, is joined by Senator Kirsten Gillibrand (D-N.Y.) in leading the push for TSCA reform. The bill also has 27 other cosponsors, but no Republican cosponsors, as of the time of this writing. Various interest groups and NGOs have welcomed the bill.[4]

However, the Safe Chemicals Act is not the only TSCA bill expected to be introduced in the 113th Congress. Senator David Vitter (R-LA), Ranking Member on the EPW Committee, is preparing an alternative and likely narrower proposal which is anticipated to address a number of industry concerns, including regarding the Safe Chemical Act’s safety standard. The American Chemistry Council (ACC), a major trade association of chemistry businesses which has been closely involved in TSCA modernization discussions to date, has stated that it is “greatly encouraged by efforts in the Senate led by Senator David Vitter . . . to develop a new proposal that will improve safety and promote public confidence in our nation’s chemicals management system, while also enabling U.S. industries to innovate and compete in the global economy.”[5] Senator Vitter has stated an intent to introduce his legislation this year, and it could be introduced within a short time.

While stakeholders across a wide range of perspectives agree on the need to modernize the almost forty-year-old TSCA, prospects for either Lautenberg’s or Vitter’s bill in the current Congress are uncertain. Both camps are actively seeking to recruit bipartisan support, although the history of the Safe Chemicals Act to date suggests that Republican support for that bill faces long odds. Legislation taking a more piecemeal approach to changing particular aspects of TSCA is also possible. It appears that for the time being, legislators in the House of Representatives are largely content to let their Senate colleagues take the lead on TSCA modernization.


[1] Bill text available at http://www.lautenberg.senate.gov/assets/SafeChemicals2013-Text.pdf; sponsors’ bill summary available at http://www.lautenberg.senate.gov/assets/SafeChemicals2013-Summary.pdf.

[2] See Beveridge & Diamond, P.C., “TSCA Modernization Proposals in 
Congress: Recent History and Prospects” (Feb. 25, 2013), http://www.bdlaw.com/news-1447.html;see also Beveridge & Diamond, P.C., “Update on TSCA Developments in Congress and at EPA” (March 22, 2012), http://www.bdlaw.com/news-1328.html; Beveridge & Diamond, P.C., “TSCA Developments in Congress and at EPA” 
(Aug. 11, 2011), http://www.bdlaw.com/news-1193.html.

[3] Press Release, “Lautenberg Reintroduces ‘Safe Chemicals Act’ to Protect Americans from Toxic Chemicals in Consumer Products” (April 10, 2013), available athttp://www.lautenberg.senate.gov/newsroom/record.cfm?id=341330.

[4] See, e.g., Safer Chemicals Healthy Families Coalition, “Toxics Reform Bill 
Debuts in Senate: Much-Needed Legislation Would Protect Americans from Unsafe Chemicals” (April 10, 2013), http://www.saferchemicals.org/2013/04/toxics-reform-bill-
debuts-in-senate.html
; Environmental Working Group, “Gearing Up for TSCA Reform” (April 10, 2013), http://www.ewg.org/enviroblog/
2013/04/gearing-tsca-reform
.

[5] Press release, “ACC Responds to Introduction of the Safe Chemicals Act by Senator Lautenberg” (April 10, 2013), http://www.americanchemistry.com/Media
/PressReleasesTranscripts/ACC-news-releases/ACC-Responds-to-Introduction-of-the-Safe-Chemicals-Act-by-Senator-Lautenberg.html
.

© 2014 Beveridge & Diamond PC

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About this Author

Mark Duvali, Environmental Attorney, Beveridge Diamond PC
Principal

Mark Duvall has over two decades of experience working in-house at large chemical companies.  His focus at Beveridge & Diamond, P.C. has been on product regulation at the federal, state, and international levels across a wide range of programs, and occupational safety and health.  He co-chairs the Firm's Chemicals, Products, and Nanotechnology practice group. 

He heads the Firm’s Toxic and Harmful Substances/Toxic Substances Control Act practice.  His experience under TSCA includes enforcement actions, counseling, rulemaking, advocacy, and...

202-789-6090
Alexandra M. ('Andie') Wyatt, Environmental Attorney, Beveridge Diamond Law Firm
Associate

Alexandra M. ("Andie") Wyatt is an Associate in the Washington, D.C. office of Beveridge & Diamond, P.C., with a general environmental, regulatory, and litigation practice.

202-789-6086