December 21, 2015

Senate Action on Chemical Safety Law Sets the Stage for Conference Negotiations on TSCA Reform Legislation

Arnold & Porter Advisory

The US Senate unanimously approved a recently modified version of the Frank R. Lautenberg Chemical Safety for the 21st Century Act on Thursday, December 17, the final day of the legislative session for 2015. The Senate’s action would introduce sweeping amendments to the nearly 40-year-old Toxic Substances Control Act (TSCA) and sets the stage for negotiations to reconcile differences between the Senate’s bill and the more narrow amendments presented by H.R. 2576, the TSCA Modernization Act of 2015, which passed overwhelmingly in June by a 398-1 vote. The manufacturers, importers, and processors of chemical substances, and the makers of commercial and consumer products that depend on those raw materials, have been monitoring legislative efforts to modernize TSCA for nearly a decade. Suddenly, amendments to TSCA appear to be on a faster track after in-fighting in the Senate inhibited enthusiasm and threatened to snatch defeat from the jaws of victory.

TSCA provides EPA broad authority to regulate chemical substances, including the products into which they are blended, such as consumer products. However, there is near universal understanding that the Agency’s authority under TSCA is under-utilized due to burdensome regulatory procedures which have not been updated since 1976 when TSCA was enacted. Congressional action in the 114th Congress represents the first serious effort to address TSCA inadequacies in decades.

The latest version from the Senate grew out of legislation originally co-sponsored by the late Senator Frank Lautenberg (D-NJ) and Louisiana’s Senator David Vitter (R-LA.). The Lautenberg-Vitter bill evolved over time to address concerns of certain states, environmental groups, and specific senators who continued to block the bill right up to the last minutes before a vote being taken just prior to a holiday recess. Senator Boxer (D-CA), who had previously and quite publically declared her support for the House’s less comprehensive bill, was the final person standing in the way of bi-partisan efforts to secure a vote. Not surprisingly, the bill that emerged contained new provisions that did not appear in the version marked up by the Environment and Public Works Committee earlier in the year and appear to address at least some of her concerns. 

The reconciliation process in 2016 remains somewhat unclear. The most likely scenario calls for House and Senate leadership to appoint conferees early in the new year who will be responsible for forging a consensus product. Vast differences separate the House and Senate-passed bills, so quick action to arrive at a compromise bill that can be easily passed in both chambers may be difficult. However, presidential election-year considerations may provide incentives for congressional leaders to move expeditiously.

Fortunately, over time, the differences between the two bills have narrowed and there are similarities upon which the conferees will likely be able to build. For example, both bills would amend the provisions that provide EPA authority to evaluate chemical substances already in commerce and simplify the procedural hurdles EPA must meet to impose restrictions on substances to mitigate unreasonable risks to human health and the environment. Persistent and bioaccumulative chemicals would receive special attention under both bills. The House and Senate bills specifically address EPA’s authority to use TSCA to regulate finished products (articles). The Senate bill would require that EPA identify substances which are a “high-priority” for review and those which represent a “low-priority.” The House bill does not require such prioritization of chemicals in commerce.

Nevertheless, both bills would establish timelines that require EPA to take regulatory actions within a specified period after commencing and completing a safety assessment for a chemical substance. Moreover, the House and Senate versions would enable a chemical manufacturer to request that EPA undertake an assessment and reach a determination concerning the safety of the current and intended uses of a substance – provided the Agency’s costs for doing so are paid by the manufacturer. The bills would modify the current law so EPA could release confidential information on chemical substances to state and local agencies for purposes of state regulatory and enforcement programs. While there are “user fee” type measures in both bills, the Senate bill will impose what are likely to be more significant new fees on the chemical industry to offset EPA’s costs of its chemical risk assessment and management program. The bills both provide for partial preemption of state chemical regulatory actions, although both will grandfather in state laws enacted before 2015.

If the conferees can reach a compromise that can be approved in both chambers, Congress is likely on the cusp of passing a bipartisan amendment to TSCA and presenting it for the president’s signature. That would be a significant victory for congressional leaders hungry to demonstrate bipartisan accomplishments even in an era of divided government. The reform effort would also become the first significant piece of bipartisan environmental legislation in decades to be sent to the president for signature.
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