Competing TSCA Reform Bills Introduced in the Senate

March was a busy month in the US Senate with the introduction of two competing bills that would amend the nearly 40-year old Toxic Substances Control Act (TSCA).  The flurry of activity suggests that enthusiasm persists for revamping the nation's central chemical control legislation during the current session.  With the likelihood that a stripped down set of TSCA amendments will be introduced this Spring in the House, there is an opportunity for the two embattled political parties to find a way to collaborate on the environmental legislation before the two main players on each side of the aisle depart the Senate.  However, key differences in the recently introduced bills suggest that finding room for a compromise may be a struggle.

When TSCA was enacted in 1976, the legislation's innovative "cradle-to-grave" perspective and cross-media scope provided the US Environmental Protection Agency (EPA or Agency) with broad authority to regulate chemical substances (and the entities that manufacture and process those substances) and fill gaps left by the media-specific environmental statutes enacted in the 1970s.  However, as an increase in awareness and concerns over the risks that can be presented by chemical substances has grown among certain consumers in the US, and as legislators in activist states and in Congress are repeatedly being reminded of progress in chemical regulation that is being made in recent years in Europe, Canada, and more recently in Asia, it has become the common wisdom that the Agency's current authority under TSCA is deficient and in need of overhaul.  Shortly after taking office, the Obama administration espoused its principles for TSCA reform as did many NGO's and trade associations representing the makers and users of chemical substances.  Given the similarity of the many lists of TSCA Reform priorities published by the important players at each end of the political spectrum, it remains somewhat surprising that TSCA Reform legislation has not been enacted to date.

If TSCA Reform legislation becomes the arena in which legislators in the Senate and House are likely to agree that bi-partisan progress can be made, it will be due in large measure because of the ground breaking agreement reached on a compromise bill introduced in 2013 by the late Senator David Lautenberg (D-NJ) and Louisiana's Senator David Vitter (R-LA) entitled the "Chemical Safety Improvement Act" (S. 1009, CSIA).¹  During the period following Senator Lautenberg's death, the bill has been refined and considerably enhanced through the efforts of Senators Tom Udall (D-NM) and Vitter to respond to criticisms from the left, and Senator Boxer (D-CA) in particular.  Not to be out done, Representative John Shimkus (R-IL), the chairman of the House Energy and Commerce Subcommittee on Environment and the Economy, released in 2014 several "discussion drafts" of a bill to amend TSCA entitled the "Chemicals in Commerce Act" (CICA).²

The fruits of the efforts of Senators Udall and Vitter produced the bill introduced mid-March as the "Frank R. Lautenberg Chemical Safety for the 21 Century Act (S. 697, hereafter, CS21)³ The modifications made by the two Senators to the original Lautenberg-Vitter bill were sufficient to gain co-sponsorship by at least eight Democrats and nine Republicans, including Senator Inhofe (R-OK), the current Chair of the Senate and Public Works (EPW) Committee.  However, the legislation did not garner the enthusiasm of the former Chairperson of the Senate EPW, now the ranking member, Senator Boxer (D-CA).  Instead, joined by Senator Markey (D-MA), she introduced their competing bill, the "Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act"⁴ which reflects some important differences from the Udall-Vitter bill with which Senator Boxer expects Committee members to contend if they hope to move a bill to the floor of the Senate.

Before concentrating on the important differences in the two competing Senate bills, it is worthwhile to note some of the many similarities, which are numerous and may be due in large measure because it appears Senators Boxer and Markey worked from a mark-up of the Udall-Vitter bill when drafting. 

The two bills have these similarities:

·        The two bills would require EPA to re-examine and re-establish the Inventory of chemical substances the Agency considers to be "active" (i.e. in commercial production and use in the US) and to update EPA's requirements for periodic reporting on active substances, and to establish requirements for entities seeking to "reactivate" currently inactive substances.

·        EPA's requirements for addressing confidentiality claims made by chemical manufacturers who wish to withhold from the general public certain trade secrets would be revamped under both bills and confidentiality claims would expire after 10 years unless new requirements are met for re-substantiating confidentiality claims.  EPA would be permitted to share confidential information with the states for environmental and health and safety purposes and with physicians and first responders treating exposed individuals.

·        The bills both enhance EPA's authority to gather data and would enable EPA to reach consent agreements, issue administrative orders, or use rulemakings to compel producers of chemical substances to generate new test data and submit studies on chemical substances.

·        Under both proposals, all new chemical substances (and significant new uses of existing chemicals) would be subject to a safety determination before such substances may enter commercial production; EPA may compel the substance's sponsor to generate needed test data and to implement risk-reduction measures as conditions of use.

·        Both bills create a regime pursuant to which EPA will perform safety assessments and then make safety determinations for existing chemical substances in the intended conditions of use by applying a risk-based "safety standard" which does not permit EPA to consider issues of costs or benefits, and does require EPA to consider population groups which may have special susceptibilities to chemical exposures.

·        The two bills require EPA to prioritize chemical substances for such assessments and determinations and to generate an initial list of high priority and low priority substances for review and regulatory action.  Substances which EPA has recently identified for reviews and assessments (i.e., "Work Plan Chemicals") will be included among those substances to be considered high priority chemicals for safety assessment and determinations.

·        EPA would be required to take regulatory actions under both bills whenever the Agency reaches a determination that a chemical substance does not meet the safety standard.  Both bills provide timelines pursuant to which such actions must be taken.

·        A user fee program will be implemented under each bill to offset EPA's costs of administering the amended TSCA.

There are a number of differences that could be surmountable between the Boxer-Markey and Udall-Vitter bills (e.g. on the number of substances that must be identified for initial high-priority and low-priority rankings; the proportion of the new TSCA program that must be funded through user fees; and certain "green chemistry" initiatives) but there are certain differences between the bills which are likely to be problematic. 

A difference that is less easily surmounted is the manner in which the two bills to amend TSCA would define the "safety standard" (i.e.,  the standard for taking regulatory actions) under a revised TSCA.  In the Udall-Vitter bill, the Agency (without taking costs and other "non-risk" factors into account) would be expected to take regulatory actions to ensure that "no unreasonable risk of harm to health or the environment will result from exposure to a chemical substance under the conditions of use," including risk of harm to "any potentially exposed or susceptible population".  Because the term "unreasonable risk" appears in the current law, advocates on the left find those words to be problematic as they imply a cost-benefit analysis (notwithstanding the clear direction in the Udall-Vitter bill to the contrary).  Thus, the Boxer-Markey bill adopts a safety standard which would compel EPA to take regulatory actions to ensure "with reasonable certainty," and without taking into consideration cost or other non-risk factors, that "no harm to human health or the environment will result from exposure to a chemical substance" (also taking into account potentially exposed or susceptible subpopulations).  That the term "unreasonable" has become a matter of principal in some quarters presents a considerable challenge at this point.

More significant among the differences in the two bills, however, is the respective bills' approach to preemption of state actions to regulate chemical substances.  Although the Udall-Vitter bill would no longer threaten to supersede, nor prevent common law or statutory claims for remedies due to alleged harms from chemical exposures, nor would it displace existing state statutes and local requirements concerning chemical substances which were in effect as of the first of 2015 (including California's Proposition 65), it would preempt new and future state actions on substances listed as high priorities for regulatory action taken after EPA has commenced and defined the scope of the safety assessment it will perform (which EPA must do within six months of the designating a substance as a high-priority chemical).  The Udall-Vitter bill nevertheless would permit states to take actions which are not within the scope of EPA's defined safety assessment and safety determination activities for high-priority chemicals; to take state action on low-priority substances; to take actions that are issued under the authority of other federal environmental laws or programs or under state clean air, clean water, or waste disposal laws or information reporting laws; and to seek waivers from EPA from any preemptive TSCA action.  In stark contrast, the Boxer-Markey bill would not permit any federal preemption of state chemical regulatory actions, and would specifically eliminate the current law's very limited preemption language. 

In EPW hearings held during March, the proponents of the Udall-Vitter bill noted ongoing efforts to address certain items of concern to interested parties, including ways to modify the language in certain passages that might garner the explicit support of the Administration.  (The Administration was careful not to take a public position in support of the Bill in the initial legislative hearing.)  It is not entirely clear whether and how the most partisan voices on the Senate EPW might seek to bridge the more noteworthy gaps between the two competing bills.  It is entirely possible that Senate Republicans will conclude that the bipartisan Udall-Vitter bill represents a line in the sand across which they cannot and will not move.  This seems especially likely if a more tailored (and conservative) bill is introduced (as expected), makes it out of committee and eventually hits the floor in the U.S. House of Representative.  If that occurs, Republicans might be reasonably expect that if TSCA Reform bills pass in both chambers, a bill that would emerge from a Compromise Committee would be acceptable to the party faithful in both Chambers and eventually land on the President's desk -- challenging him to veto a piece of bipartisan environmental legislation based solely on the concerns of an outgoing Senator from California.  That might not be the place in which the Democrats want to find themselves when going into the 2016 election season.