House Energy and Commerce Committee approves TSCA Modernization Act

On June 3, the U.S. House of Representatives’ Committee on Energy and Commerce approved the TSCA Modernization Act of 2015 (H.R. 2576) with a 47-0 vote (1 abstention). On May 14, the Subcommittee on Environment and the Economy had unanimously approved the draft legislation (21-0) with a few technical amendments and garnered strong bipartisan support. The draft was formally introduced as a bill on May 29 and has support from Subcommittee Chairman John Shimkus (R-IL), Subcommittee Ranking Member Paul Tonko (D-NY), full Committee Chairman Fred Upton (R-MI), and Ranking Member Frank Pallone (D-NJ).

House Majority Leader Kevin McCarthy (R-CA) has announced he intends to bring the bill to the House floor the week of June 23. Similarly, in the Senate, the Frank Lautenberg Chemical Safety for the 21st Century Act (S. 697) has passed out of the Senate Environment and Public Works Committee ([LINK=]See Coatings Today article from May 11[/LINK]) and now awaits floor time in the Senate for a vote, potentially this summer. The bill has secured 40 cosponsors, evenly split between Democrat and Republican.

[B]ACA Advocacy Efforts [/B]

After many years of Congressional attempts to modernize the Toxic Substances Control Act (TSCA), the passage of H.R. 2576 and S. 697 by their respective Committees marks a historic opportunity for TSCA reform legislation to finally be voted on by Congress. While the bills are different in many respects, they both make fundamental improvements to the broken TSCA statute, will improve the protection of human health and the environment, help better facilitate interstate commerce, and provide the public greater confidence in the safety of chemicals in products. ACA supports both the House and Senate TSCA reform efforts, and has signed on to letters of support as part of the American Alliance for Innovation (AAI) submitted to the House Energy and Commerce Committee. ACA also signed onto an AAI letter to be sent to Senate Majority Leader Mitch McConnell (R-KY) to encourage him to bring S. 697 to the Senate floor for a vote prior to the August recess.

ACA staff has also been active in meeting with numerous Senate and House offices to discuss the importance of TSCA reform for its industry. ACA has launched its [LINK=]Coatings Connect page[/LINK] so that members can use the grassroots tool to submit letters to their senators in support of S. 697. ACA plans to launch a similar page so that member can send letters to their representatives in support of H.R. 2576.

[B]House Legislation [/B]

According to the Energy and Commerce Committee, the legislation seeks to “improve the protection of human health and the environment, help better facilitate interstate and international commerce, and provide the public greater confidence in the safety of American-made chemicals and the products that contain them.” The House bill, while less comprehensive than the Senate bill, makes significant improvements to TSCA Section 3 (Definitions), Section 4 (Testing), Section 6 (Existing Chemicals), Section 9 (Relationship to Other Federal Laws), Section 14 (Confidential Business Information), Section 18 (Preemption) and Section 26 (Administration). Some of the major features include the following:

[B]Safety Standard: [/B]H.R. 2576 improves the current TSCA safety standard by repealing the requirement under TSCA that rules restricting chemicals must use “the least burdensome requirements” and requires EPA to evaluate a chemical based on whether it presents an unreasonable risk of injury to human health or the environment, including unreasonable risks to potentially exposed subpopulations.

[B]Risk Evaluations:[/B]The bill requires that the U.S. Environmental Protection Agency (EPA) select existing chemicals for risk evaluation based on whether the potential hazard from and potential exposure to a chemical under the intended conditions of use may present an unreasonable risk of injury to human health or the environment. Manufacturers may also request that EPA evaluate chemicals for safety if they pay 100 percent of the costs. EPA is authorized to request for testing data necessary to conduct a risk evaluation (by rule, order, or consent agreement). EPA can also conduct risk evaluations on TSCA Work Plan Chemicals. The bill also requires EPA to initiate at least 10 risk evaluations per year. If EPA determines, based on a risk evaluation, a chemical substance or mixture presents or will present an unreasonable risk of injury to health or the environment, or if EPA designates a persistent, bio-accumulative, and toxic (PBT) chemical or mixture for regulation, the bill requires EPA to develop rules “so that the chemical substance or mixture no longer presents or will present an unreasonable risk, including an identified unreasonable risk to a potentially exposed subpopulation.” The bill also allows for expedited action on PBTs. Risk evaluations for all other chemicals must be completed within three years.

[B]Risk Management Rules: [/B]When EPA regulates a chemical, it must:

[*]        Consider the effects of the substance or mixture on health and the environment;[/*]
[*]        Consider the benefits of the substance and the economic consequences of the rule;[/*]
[*]        Impose requirements determined by the Administrator to be cost-effective, except where EPA determines that additional or different statutory requirements are necessary to protect against the identified unreasonable risk of injury;[/*]
[*]        Determine whether feasible substitutes will be available when deciding whether to prohibit or restrict the chemical or mixture and when setting a transition period; and[/*]
[*]        Exempt replacement parts designed before the rule is published in the [I]Federal Register[/I], unless such parts contribute significantly to the identified risk; and apply restrictions on articles only to the extent necessary to mitigate the risk.[/*]

A risk management proposed rule must follow risk evaluations within 90 days and a final rule within 180 days. EPA may extend these deadlines, but not for longer than two years after the original deadline.

[B]Confidential Business Information (CBI): [/B]H.R. 2576 continues to protect confidential business information submitted to EPA, and allows access to certain government officials and health care professionals, subject to the same penalties for unauthorized disclosure that apply to federal employees. CBI claims must be substantiated upfront and must be re-asserted after 10 years. The CBI exemption for health and safety studies does not include the release of data that would disclose information such as formulas.

[B]User Fees: [/B]The bill requires that user fees be “sufficient and not more than reasonably necessary” and lower for small businesses. Any regulation EPA creates setting user fees would have to be published in the Federal Register and go through notice and comment. The money collected from user fees would go into a newly created “TSCA Service Fee Fund” and can only be used to administer the TSCA program. The bill also creates safeguards to ensure EPA uses the fund properly with audits and reports to Congress.

[B]Preemption: [/B]The legislation keeps much of the same language as current law in that once EPA makes a final decision on a chemical (i.e., based on the risk evaluation, EPA determines the chemical does not present an unreasonable risk of injury to human health or the environment, or EPA determines that it does and promulgates a rule), then EPA’s decision preempts state laws on that chemical. However, the preemption provisions have exceptions, including:

[*]        state and local laws adopted under the authority of another federal law[/*]
[*]        state and local air, water quality, and waste treatment/disposal laws[/*]
[*]        state interpretations of tort and contract laws, and laws regarding admissibility of evidence[/*]
[*]        state or local laws enacted before Aug. 1, 2015[/*]
[*]        any action taken pursuant to a state law that was in effect on Aug. 31, 2003.[/*]

ACA will continue to advocate for strong, federal preemption in order to create a workable, consistent regulatory landscape for industries such as the paint and coatings industry that do business across state lines. Not only has the lack of TSCA reform encouraged states to regulate chemicals and establish different chemicals management programs, but now the country is seeing regulations emerging at the county level (see [LINK=]information about Albany County, NY’s children’s product ordinance[/LINK] that passed in early 2015).

Contact ACA’s [LINK=]Javaneh Nekoomaram[/LINK] for more information.


From: American Coatings Association