UPDATED April 17, 2015
WASHINGTON — A new Congress means taking yet another crack at updating the 1970s law regulating U.S. chemical manufacturing, transportation and use. Bills are already in play in both the House and the Senate and both plastics industry and Congressional observers are optimistic about seeing an agreement to update the 1976 Toxic Substances Control Act this year.
The House Energy and Commerce Subcommittee on the Environment and the Economy met April 14 to open discussion on the House proposal to revamp TSCA penned by subcommittee chairman Rep. John Shimkus (R-Ill.).
“We are six and a half years into a debate on changes to a major federal environmental statute that has not been significantly amended since it was enacted nearly 40 years ago,” Mike Walls, vice president for regulatory and technical affairs at the American Chemistry Council, said in testimony April 14. “It is well past time that TSCA reform moves forward. The discussion draft is a major milestone toward the objective of TSCA reform this year.”
The as-yet unnumbered Shimkus bill is considered to be a more limited version of the congressman's Chemicals in Commerce introduced last session — which garnered little support from across the aisle and stalled in committee.
Of the two bill in the Senate, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S 697), introduced by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) is the one with the most bipartisan support. Introduced March 10, the bill already has 21 co-sponsors — 11 Republicans and 10 Democrats — in the now Republican-controlled Senate.
While it bears much resemblance to the Shimkus bill, the House and Senate proposals differ in three critical ways: preemption of state laws, priority of assessment and price considerations in regulation.
Opponents have criticized the Senate's Udall-Vitter bill for preempting the ability of states to issue their own chemical regulations, requirements and bans — a fatal flaw in last year's bill that sparked serious opposition from Sen. Barbara Boxer (D-Calif.), who was then chairman of the Senate Environment and Public Works Committee and able to block the bill from moving in favor of her own version. This year's Udall-Vitter proposal would still preempt states from issuing their own safety laws and do so for any chemical the EPA has even begun to assess, a process that could conceivably take several years.
The House bill, however, would only preempt states from enacting their own laws after EPA has completed assessment of a chemical and begun the rulemaking process.
Under the Senate bill, EPA would have to flag a chemical as high priority before assessment could begin but it could also classify a chemical as in need of review but a low priority.
The House draft would set up a new system for EPA to evaluate risks associated with chemicals already on the market, and set a three-year deadline for the agency to complete risk evaluations. Evaluations initiated by manufacturers would have to be done in 180 days.
Critics of the House bill argue the new review process could be exploited if businesses force EPA to assess chemicals that aren't much of a safety risk, leaving them without the time or resources to review chemicals that are actually hazardous to workers or consumers. Industry would be required to pay for the assessments they request, however.
Jim Jones, EPA's top chemical safety regulator, said in the April 14 hearing that he has concerns about the new rules for the agency, including that the deadlines laid out in the bill are “unreasonably short” and that the agency, which has not taken an official position on the legislation, may not have enough resources to meet new requirements.
Finally, the Senate bill would force EPA to base chemical safety decisions entirely on matters of risk to public health and the environment.
But critics of the House bill say its wording creates a loophole where the high price of mitigating exposure to some harmful chemicals that cost considerations could leave the public unprotected.
“Cost considerations should be reserved for the question of how to mitigate the risk, not whether to mitigate it,” Andy Igrejas, director of Safer Chemicals, Healthy Families testified April 14. “As it stands, we believe the draft would allow a major risk, such as a chemical that causes cancer or birth defects, to remain unmitigated if it was deemed too expensive to do so. That is a very different outcome than mitigating the risk in a cost-effective way.”
“Cost considerations should be reserved for the question of how to mitigate the risk, not whether to mitigate it,” he said. “As it stands, we believe the draft would allow a major risk, such as a chemical that causes cancer or birth defects, to remain unmitigated if it was deemed too expensive to do so. That is a very different outcome than mitigating the risk in a cost-effective way.”