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Toxic Substances Control Act Overhaul Moves Ahead with Senate Changes

Friday, October 09, 2015
Sandler, Travis & Rosenberg Trade Report

The Senate could soon approve legislation making the first significant overhaul of the Toxic Substances Control Act since its enactment nearly 40 years ago (S. 697) after the bill’s lead sponsor agreed to changes that won the support of two key senators, bringing the number of supporters to a filibuster-proof 60. The House of Representatives passed its TSCA reform bill (H.R. 2576) by a 398-1 vote in June, and the full Senate could take up S. 697 within the next week or two.

Under S. 697 chemical safety decisions by the Environmental Protection Agency would be based solely on risk to public health and the environment, and costs or burdens to manufacturers could not be considered. All chemicals in commerce, including those “grandfathered” under TSCA, would be required to undergo safety reviews, and a safety finding for new chemicals would be required before they can enter the market. This bill would place greater emphasis on and require protection of those who may be more exposed or particularly vulnerable to the effects of exposure to chemicals and would clearly define them as including infants, children, pregnant women, chemical workers and the elderly. States would be able to restrict a chemical until and unless the EPA takes up that same chemical and addresses the same uses. Once the EPA acts on a chemical substance, a uniform federal standard would be applied across the nation.

Sens. Edward Markey, D-Mass., who had previously offered a competing TSCA reform bill, and Richard Durbin, D-Ill., said they will support S. 697 after securing the following changes that will be made when the bill is brought up on the Senate floor.

- increasing the $18 million per year funding cap for industry TSCA fees to $25 million per year and creating a process to ensure sufficient resources to defray 25 percent of the EPA’s chemical safety program costs

- setting a mandatory compliance deadline of four years for industry compliance with EPA regulations (with an extension of up to 18 months if the EPA determines that the deadline is technologically or economically infeasible)

- clarifying and simplifying the process for state waivers from preemption and state co-enforcement of federal chemical safety regulations

- expediting regulatory action on TSCA work plan chemicals (the 90 chemicals that the EPA has

identified as having the highest potential for exposure and hazard) from seven years to generally five

- ensuring (a) parity for judicial review of EPA actions, (b) that the EPA has to disclose the information it used to make prioritization decisions, and (c) improvements to provisions allowing access to confidential business information for medical professionals and first responders

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