WASHINGTON — After decades of attempts, it seems this could be the year the much-maligned U.S. chemical regulation laws get an update.
The House Energy and Commerce Committee on June 3 voted unanimously to send to the full U.S. House of Representatives floor a bill (HR 2576) to reform the 1970s-era Toxic Substances Control Act (TSCA). It could appear on the House floor as early as the week of June 22.
Meanwhile, across the Capitol, the Senate version of the bill (S 697) was approved for the floor by the Senate Committee on Environment and Public Works with a 15-5 vote on April 28. The full Senate has not yet taken up the bill, though pressure is mounting on Senate Majority Leader Mitch McConnell (R-Ky.) to put it on the calendar.
In a June 2 letter, more than 145 trade associations, under the banner of American Alliance for Innovation called on McConnell to take up the bill before Congress leaves for its annual month-long summer vacation in August. The more than 40 cosponsors from both sides of the aisle have also begun calling for action on the measure soon.
Experts who have long followed the ups and downs — mostly downs — of TSCA reform over the years remain optimistic.
“My prediction is that this is the year,” said Mark Duvall, a principal with law firm Beveridge & Diamond PC and an expert on the chemical law, who has testified in both chambers on potential changes. “I'm predicting that we will have legislation signed by the president this year.”
The reason this particular pair of bills could become law when so many others have failed is due to the tremendous bipartisan support they have, Duvall said. The efforts on TSCA are unique at a time when compromise is in short supply on Capitol Hill.
“This is a remarkable situation that we're in where Republicans are urging the Congress to give EPA more authority, including conservative Republicans,” Duvall said. “So the usual practices about difficulty in compromise don't necessarily apply here. The number of issues that are contentious at this point is quite limited.”
The Senate's highly negotiated bill, much changed since the failed 2013 version, is the result of negotiations aimed at broadening the appeal and reducing the opposition to the bill.
“A lot of progress made in resolving conflicts between Republican and Democrat, conservative and liberal, such that senators like [conservative Oklahoma Republican Jim] Inhofe and [New Jersey Democrat Corey] Booker can be supportive of the same bill,” Duvall said.
Some stumbling blocks may still remain, chief among them the possibility that a federal law will pre-empt state laws that have popped up around the country in the decades of Congressional deadlock on TSCA reform.
During the House committee markup, Rep. Anna Eshoo (D-Calif.), who ultimately abstained from the 47-0-1 vote to move the bill, offered and withdrew an amendment that would have attempted to address preemption concerns.
Attorneys General of 12 states, including California, New York, Oregon, Massachusetts and Washington, have repeatedly voiced concerns to the committee that changes to the federal chemical regulations should not pre-empt state laws that have been passed over the years while Congress failed to update TSCA.
California's Proposition 65 is perhaps the most famous of these statutes, requiring businesses to notify citizens when significant amounts of certain chemicals are present in products, workplaces, public spaces or released into the environment. Bisphenol A and PVC have both come under Prop 65 attack in recent years.
“In a national economy, a state regulation quickly becomes a national standard, often without the due process and back and forth discussion that comes with rule making at the federal level as well as the expert scientific study at the federal level,” Duvall said. “BPA is a good example,” where the federal government has repeatedly declared it safe yet California, using a different standard, has added it to the Prop 65 list.
The question of pre-emption has also hindered TSCA reform progress in the Senate, where Sen. Barbara Boxer (D-Calif.) wants several changes before she will support the bill, including all possibilities of pre-emption removed from the bill and the naming of specific chemicals as toxic in the legislation, including asbestos.
But with 41 bipartisan supporters and numerous Republicans who have not yet taken a position on the bill, Boxer is unlikely to be able to mount a filibuster and hold up the bill when it reaches the Senate floor.
The bigger question, Duvall said, is how the two bills could be reconciled by a conference committee. The House bill is 43 pages long; the Senate's is 179 pages. The pre-emption provisions in both bills are very different, as are the methods for how the EPA should prioritizing chemicals for review. Once both bills are passed by their respective chambers, members still have to come together to reconcile them, which could be contentious.
“The Senate is shooting for a more comprehensive overhaul of TSCA whereas the House is looking for a very targeted approach,” Duvall said. “A lot of stuff could happen behind close doors. Politics is reaching compromises in order to move legislation.”