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Toxic Substances Control Act Reform Still a Work in Progress

Monday, May 19, 2014
Sandler, Travis & Rosenberg Trade Report

Efforts to overhaul the flagship U.S. law on hazardous chemicals are continuing in the House of Representatives, but a recent hearing indicates that there are still concerns among both policymakers and private sector interests about some of the provisions in a draft bill under consideration.

The House Energy and Commerce Subcommittee on Environment and the Economy held April 29 its second hearing this year on the draft Chemicals in Commerce Act, which a subcommittee statement said would reform the Toxic Substances Control Act to ensure a transparent, workable and risk-based process for chemical review and regulation. Rep. Fred Upton, R-Mich., said this draft bill “is aimed at initiating a systematic process to review [existing] chemicals and determine which uses of them are safe and whether we need any requirements or restrictions.”

Draft Bill Provisions. According to the statement, the revised draft bill considered at the April 29 hearing includes a number of significant changes from the previous version, including the following.

- adds new authority for the Environmental Protection Agency to require the development of new hazard and exposure information for priority designation purposes if existing information is insufficient

- gives EPA discretion to decide whether to grant exemptions for by-products from section 5 notice requirements, rather than requiring such exemptions to be granted

- changes the legal standard for regulating a new chemical substance from “is likely to result in” to “may present” an unreasonable risk of harm, mirroring current law

- requires EPA to evaluate whether a chemical substance designated as high priority presents or will present, in the absence of regulation under section 6, a significant risk of harm to human health or the environment under its intended conditions of use based on four factors: the nature and magnitude of the risk, impact on potentially exposed subpopulations, whether harm has occurred, and the probability that harm will occur from use of a chemical substance

- makes explicit that, in making such risk evaluations, EPA is not to consider economic costs or benefits of the use of the chemical substance or of reducing exposure

- adds deadlines for EPA to take action on existing individual chemicals, including completing a risk evaluation within four years after designating a chemical as high priority and promulgating any restrictive rule on an existing chemical within three years after finishing the risk evaluation

- eliminates requirements that EPA determine if a rule imposing requirements or restrictions on a chemical substance is proportional and results in net benefits but retains the requirement that EPA determine whether its rules are cost-effective and whether economically feasible alternatives that benefit human health and the environment exist

- requires EPA to provide for a reasonable transition period when it restricts use of a chemical

- requires EPA to provide guidance on and accept a unique chemical identifier as a replacement for public disclosure of a chemical identity and makes explicit that chemical identity should be protected from disclosure as part of a health and safety study

- limits the pre-emptive effect of an EPA designation of a chemical substance as low priority to just those state and local regulations established after the designation

- codifies five science assessment factors currently used in guidance by EPA and clarifies that decisions on testing, new chemicals and existing chemicals under TSCA must be made based on the weight of such scientific evidence

Industry Support. Cal Dooley, former member of Congress and currently CEO of the American Chemistry Council, signaled his organization’s approval of the discussion draft, which he said “would modernize TSCA in a sensible way that focuses on those elements of TSCA most in need of improvement.” Dooley noted that the draft “makes clear that EPA’s risk evaluations of high priority chemicals will be based strictly on a science based finding of significant risk of harm to human health or the environment” and that “economic cost and benefit would be considered only in EPA’s determination of what regulation is needed to manage that risk.” He asserted that changes to the TSCA new chemicals program would “contribute to greater efficiencies and protections in the chemical regulatory framework, while still allowing industry the opportunity to bring new innovations to market quickly and efficiently.” He also praised improvements to the testing provisions of TSCA and said the expansion of EPA authority to mandate testing for prioritization purposes is “a significant change that ACC can support.”

EPA Concerns. EPA official James Jones, however, told the hearing that while the Obama administration supports TSCA reform it has several concerns with the draft bill. These include lack of a mechanism that would provide for the timely review of existing chemicals that may pose a concern, the inclusion of a standard for limiting or banning chemicals that pose a significant risk that is very similar to current statutory authorities, failure to require EPA to conclude that new chemicals are safe and do not endanger public health or the environment, and risk management authorities for new chemicals that are weaker than those in TSCA.

Preemption of State and Local Efforts. Another concern was raised by Democratic Reps. Henry Waxman and Paul Tonko in a letter to Subcommittee Chairman John Shimkus the day before the hearing. These two committee members expressed concern about a provision in the draft bill that would preempt state and local governments from (a) establishing or implementing a law or regulation requiring the development or submission of information relating to a chemical substance and (b) prohibiting or restricting the manufacture, processing, distribution in commerce or use of a chemical substance. They cited a letter from 13 state attorneys general that this “sweeping” preemption language “would effectively eliminate the existing federal-state partnership on the regulation of toxic chemicals by preventing states from continuing their successful and ongoing legislative, regulatory and enforcement work that has historically reduced the risks to public health and the environment posed by toxic chemicals.”

 “Step Backwards.” Andy Igrejas, director of the Safer Chemicals, Healthy Families coalition of public health, labor and environmental organizations and businesses formed to advocate TSCA reform, told the hearing that while the revised discussion draft “has some improvements” it would still “represent a significant step backwards from the status quo of chemical regulation in the United States.” Igrejas expressed particular concern that EPA would still be unable to impose risk management measures, that the standard for risk evaluations is unclear, that EPA authority over new chemicals would be reduced, that states’ rights to implement their own protections would be “unduly violated,” and that chemicals would be set aside without a full safety review.

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