March 2015

U.S. Senate considers new TSCA reform bill

The stage has been set for US Senate action this year on reforming the 40-year-old Toxic Substances Control Act (TSCA) with the introduction of a new bill on 10 March. The bill’s sponsors say it “builds on and strengthens” the 2013 Chemical Safety Improvement Act (CSIA) (CW 22 May 2013).

The Frank R. Lautenberg Chemical Safety for the 21st Century Act was coauthored by Senators Tom Udall (Democrat-New Mexico) and David Vitter (Republican-Louisiana). Mr Vitter was the co-sponsor of CSIA along with the late Senator Frank Lautenberg, after whom the new measure is named. The CSIA stalled in the Senate Environment and Public Works (EPW) Committee in the face of strong opposition from then-committee chairman Barbara Boxer (Democrat-California). She was especially concerned about state preemption. Since then Republicans have gained control of the Senate and the committee leadership.

The new bill currently has 18 co-sponsors, half of them Democrats. The bipartisan support is a “very strong statement in terms of our ability to move forward” with the legislation, says Mr Vitter.

The bill has major differences with CSIA in language relating to state preemption, safety standards, deadlines for action by the Environmental Protection Agency (EPA), funding for the agency, and specifying protection for vulnerable populations including infants, children, pregnant woman and the elderly.

On the contentious issue of state preemption, the measure would:

  • let all state regulations on chemicals stand if they were enacted before 1 January 2015;
  • let states act to restrict a chemical until and unless the US EPA takes up the same substance for assessment after designating it as a priority chemical. State action relating to information collection and monitoring of chemicals are not prohibited;
  • allow states to seek a waiver from preemption for “compelling local reasons”. They can also seek judicial review of EPA decisions on waivers; and
  • apply a uniform federal standard across the country once the EPA takes action on a chemical.

The legislation mandates that the EPA bases chemical safety decisions solely on considerations of risk to public health and the environment. Costs and benefits cannot be a factor in chemical safety evaluations. It also eliminates wording in TSCA that requires the agency to implement the “least burdensome” route for regulating a chemical.

Unlike CSIA, the legislation sets deadlines for EPA action on chemicals, including completion of safety assessments of priority chemicals within three years of designation. If the agency finds that a chemical does not meet the safety standard, risk management measures must be imposed within two years.

It allows the EPA to levy user fees to fund a portion of expenses to implement the legislation. It estimates that the agency can raise about $18m/year that would cover about 25% of the costs related to implementing the legislation. It preserves existing private rights of action, meaning citizens can sue and seek damages from industry when they believe that harm has been done.

The measure requires upfront substantiation for confidential business information (CBI) claims and sets a ten-year deadline for renewing such claims.

Mr Vitter says he and Mr Udall have involved “every stakeholder” over the last two years to make improvements to CSIA. While giving the EPA additional authority to protect health and safety, he adds that the measure also helps create a “single rulebook” that provides regulatory certainty for industry.

Asked if he is open to further changes to the preemption language to attract the support of Ms Boxer and others, he says he is “open to any good ideas to improve the bill’s important balance between states and the EPA.” But he does not see any basic changes being made to the preemption language “because we got it right fundamentally”.

Mr Vitter, who is running for Governor in Louisiana this year and would step down from the Senate if he won, says he is “very optimistic” that the bill would get the support of more than 60 senators, enough to insulate it against a filibuster.

“This bill represents the best opportunity to strengthen safeguards against dangerous chemicals and dramatically improve existing law, while allowing innovation in the industry,” says Mr Udall. “I’ve worked closely with experts, environmental leaders and community groups to craft this bipartisan proposal, and am proud that we’ve come to a consensus on a bill that will break the logjam and protect our families.”

In a statement, Ms Boxer, who is now the ranking member of the EPW committee, says legal experts who examined the measure “tell me this bill is worse than current law. This means there will be fewer protections from the most dangerous chemicals for communities and families.” The bill in its current form also “devastates the role of states in protecting their people,” she adds. “I will continue to work to improve this bill.”

The Environmental Defense Fund, which has worked hard in recent years to find an acceptable compromise on TSCA reform, welcomed the bill and has published a factsheet and detailed bill analysis.

“After nearly four decades under a failed law, this legislation would finally provide EPA with the tools it needs to better protect American families,” said EDF lead senior scientist Richard Denison. “Rare political circumstances have opened a narrow window to pass meaningful reform that protects the health of American families. It’s essential Congress act now.”