iAfter a difficult progression, the bipartisan TSCA reform bill, the “Frank R. Lautenberg Chemical Safety for the 21st Century Act” (S. 697), was passed by the Senate on Thursday, December 17, 2015. H.R. 2576 as amended by the Senate in its entirety with provisions from S. 697 provides for a remodeling of TSCA and would alter nearly every key provision of the Act. Our earlier assessment of S. 697 can be viewed here.
The major substantive provisions of S. 697 are relatively unchanged, with the following additional items being noted as new additions in the Senate-passed bill:
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An expanded number of chemicals that must be considered for prioritization screening, including more PBTs and 2014 Work Plan Chemicals that are known human carcinogens and have high acute and chronic toxicity.
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A requirement to use a specified framework for prioritizing metals and metal compounds.
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A requirement for EPA to publicly justify any extension in deadlines for chemical reviews.
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New section 9 language directing EPA to work with other agencies to regulate chemical substances for uses under their jurisdiction.
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An expanded list of substances subject to export notification to now include substances that are subject to any “pending action”.
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Strengthened language to protect chemical substance identities that are claimed as confidential in section 5 notices from disclosure.
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More fee categories and provision for greater coverage of program costs through the fee system.
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On preemption, several clarifications to the state waiver provisions were made. The scientific basis for granting a “discretionary” waiver appears to be slightly raised. The bill also addresses a previous uncertainty about whether the condition for a waiver be unique to the State or locality or, instead, simply significant or important, thus making it easier, at least in this respect, for States to get a waiver.
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With regard to preemption of new state laws or regulations during EPA’s safety assessment, this bill pegs the end of preemption to the earlier of the safety determination or the expiration of the deadline for making the determination (3 years plus limited extensions).
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A removal of a sixty day notice requirement for civil actions to compel EPA to reach a determination on “required” waiver applications.
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A federal coordinating framework initiative charged with developing a working definition for a new “sustainable chemistry” program.
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Modification of permanent and temporary storage deadlines under the Mercury Export Ban Act of 2008 and new provisions (in addition to those already contemplated by the United States under the Minamata Convention on Transboundary Mercury Emissions) to inventory all mercury compounds and ban exports of certain mercury compounds.
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Trevor’s Law, a program for federally funding the designation and investigation of cancer clusters.
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In the case of co-enforcement by a state, a new provision allowing EPA to impose additional penalties in enforcement proceedings for the same violation as long as the total state and federal penalties do not exceed the maximum allowable amounts under Section 16. States may also seek penalties where EPA has previously assessed penalties for the same violation, but not where EPA has imposed an “adequate” penalty.
A link to more detailed fact sheets from Senator Udall’s office can be accessed here: https://www.scribd.com/doc/258282642/Udall-Vitter-Fact-Sheet-on-Frank-R-Lautenberg-Chemical-Safety-for-the-21st-Century-Act
