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Chemical Safety Reform Bill Advancing Through House

Wednesday, June 10, 2015
Sandler, Travis & Rosenberg Trade Report

The House Energy and Commerce Committee has approved a bill to reform the Toxic Substances Control Act to help improve chemical safety and management. The near unanimous vote on the TSCA Modernization Act (H.R. 2576) indicates that lawmakers may finally be nearing the first overhaul of TSCA in the nearly 40 years since it became law. The bill, a careful bipartisan compromise on what has proven to be a highly controversial topic, is now expected to be considered by the full House later this month.

According to a committee fact sheet, H.R. 2576 would create a new system for the Environmental Protection Agency to evaluate and manage risks associated with chemicals already on the market, including those grandfathered under the current law. Either the EPA or a manufacturer willing to pay the cost could designate a chemical for risk evaluation. Evaluations would have to stand up to rigorous scientific standards, would not be able to consider cost and other factors not directly related to health or the environment, and would have to be completed within three years. If an evaluation yields a determination of unreasonable risk, the EPA would have to propose regulatory action to manage that risk within 90 days.

Once the EPA makes a final decision on a chemical, either a new rule or a determination that it poses no unreasonable risk, that action would apply in all states. Prior state laws that do not conflict with TSCA, and private rights of action under tort or contract law, would be preserved. However, the issue of whether the bill would preempt tougher laws that states have passed in the absence of TSCA reform, such as California’s Proposition 65, must still be worked out before the bill goes to the House floor.

Other provisions include ensuring that user fees paid to the EPA for specific purposes are used just for those purposes, maintaining protection of confidential business information, providing access to certain state, local and tribal government officials and health care professionals, and requiring confidentiality claims to be reclaimed after ten years.

At least one environmental organization said the House bill does not go far enough. “We need expeditious, rigorous safety evaluations of at least 1,000 toxic chemicals that the Environmental Protection Agency says deserve priority attention,” a press release from the Environmental Working Group said. “And we need assurance that the most dangerous chemicals will be regulated or banned.” The EWG asserted that H.R. 2576 “falls short in several respects,” including an untested and ambiguous safety standard, failure to require tough deadlines for final EPA action, and failure to provide the resources the EPA needs to quickly review the most dangerous chemicals. Both the EWG and Safer Chemicals Healthy Families also highlighted provisions that would allow chemical companies to “pay for quick reviews and approval of their favorite chemicals” while “promised reviews of the truly dangerous chemicals … could languish for lack of funding from Congressional appropriators.” Instead, SCHF said, Congress should strengthen the EPA’s ability to conduct a minimum of ten of its own reviews per year and to manage the reviews requested by industry to ensure they do not overwhelm the agency.

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