June 24, 2015

　　On June 23, the U.S. House of Representatives passed H.R. 2576, the TSCA Modernization Act of 2015, by a 398-1 vote.

　　On June 23, the U.S. House of Representatives passed H.R. 2576, the TSCA Modernization Act of 2015, by a 398–1 vote. The bipartisan vote by 231 Republicans and 167 Democrats marked a historic moment: a leap forward in the multi-year efforts to modernize the Toxic Substances Control Act (TSCA). The bill, introduced by Rep. John Shimkus (R-IL) and the House Energy and Commerce Committee, updates TSCA — the primary statute regulating chemicals in commerce in the United States — which has not been modified since enacted in 1976. The TSCA Modernization Act of 2015 will bring the country’s primary chemicals management law up to date to ensure the safe use of chemicals, encourage the development of new products, and protect American jobs.

　　Rep. Shimkus moved that the House suspend the rules and pass the bill as amended, and the bill was discussed and considered under suspension of the rules. Rep. Shimkus, Full Committee Ranking Member Frank Pallone (D-NJ), Subcommittee Ranking Member Paul Tonko (D-NY), Rep. Larry Bucshon (R-IN), Rep. Lois Capps (D-CA), Rep. Gene Green (D-TX), and Rep. Diana DeGette (D-CO) made statements on the House floor in support of the legislation. Given the contentious debate surrounding TSCA reform last Congress and the Committee’s inability to officially introduce a bill last year, it is a significant leap forward that not only did TSCA reform legislation pass unanimously (47–0) out of the Energy and Commerce Committee, but it almost unanimously out of the full House as well.

　　“Having a stronger federal chemicals management program will not only improve the public’s confidence on the safety of chemicals, but will also provide businesses with much-needed certainty and consistency in the marketplace,” stated ACA President Andy Doyle. “ACA and its member companies have advocated for TSCA reform since Congress took up this issue years ago. We are pleased that the House has worked hard over the past several months to pass bipartisan, landmark legislation that will improve the current law. We look forward to the Senate passing its version of the legislation and a bill being sent to the President’s desk.”

　　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 (EPW) and now awaits floor time in the Senate for a vote, potentially this summer. The bill has secured 44 cosponsors with 24 Republicans and 20 Democrats.

　　ACA Advocacy Efforts

　　After many years of Congressional attempts to modernize TSCA, the passage of H.R. 2576 on the House floor and S. 697 out of Senate EPW marks a historic opportunity for TSCA reform legislation to finally be passed by Congress. Although 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 and Senate EPW Committee. ACA also signed on to an AAI letter 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, as well as a letter to House leadership prior to the vote on June 23. ACA anticipates seeing the Senate bill receive floor time sometime this summer.

　　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 Coatings Connect page so that members can use the grassroots tool to submit letters to their senators in support of S. 697.

　　TSCA Modernization Act, H.R. 2576

　　The House bill, though 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:

　　Safety Standard: 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. The bill also clearly defines potentially exposed subpopulations.

　　Risk Evaluations: The bill requires that 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, and manufacturer-initiated risk evaluations in two years. Overall, this creates a risk-based standard for determining chemical safety.

　　Risk Management Rules: 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 Federal Register, 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 one year and a final rule within two years. EPA may extend these deadlines.

　　Confidential Business Information (CBI): 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 up front, and they expire after 10 years unless the manufacturer submits a request for renewal. The CBI exemption for health and safety studies does not include the release formulas.

　　User Fees: 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. The bill allows EPA to collect to the extent and in the amount authorized in appropriations, and ensures collected fees are available for use in administering the provisions for which they were collected, without any limitation to fiscal year.

　　Preemption: 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 bill allows for states to co-enforce so long as the state does not assess the same penalty for a specific violation as EPA (no duplication of penalties).

　　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 information about Albany County, NY’s children’s product ordinance that passed in early 2015).

　　For More Information

　　Click here to view a copy of the bill.

　　Click here to view the letter ACA signed in support of the TSCA Modernization Act, sent to House leadership on June 2, and co-signed by over 150 organizations.

　　Click here to go to ACA’s Coatings Connect site to send a letter to your Senator in support of S. 697.

　　Contact ACA’s Javaneh Nekoomaram or Stephen Wieroniey for more information