Reform of the Toxic Substances Control Act (TSCA) is a little closer to happening since Representative John Shimkus (R-IL), chair of the House Energy and Commerce Subcommittee on Environment and the Economy, released on February 27, 2014, a discussion draft updating the TSCA. The Chemicals in Commerce Act (CICA) keys off S. 1009, the Chemical Safety Improvement Act (CSIA), which was introduced last May by the late Senator Frank R. Lautenberg (D-NJ) and Senator David Vitter (R-LA). This column highlights provisions in the discussion draft.
The discussion draft generally maintains the integrity of the TSCA and tracks to a large extent S. 1009. On the debated issue of state preemption, CICA would preserve the authority of states to ban chemicals until the U.S. Environmental Protection Agency (EPA) either determines the chemical isn't likely to cause an unreasonable risk or promulgates a rule restricting the chemical. The discussion draft would preempt state or local law or regulation: that mandates developing or submitting information on a chemical substance, mixture or article, or its intended conditions of use that the EPA requires under TSCA Sections 4, 5 or 6; that prohibits or restricts a chemical once the EPA determines a new or existing chemical under its intended conditions of use is unlikely to result in an unreasonable risk of harm, has designated the chemical as a low priority under Section 6, or the review period under Section 5 has expired; from requiring use notification for a chemical if the EPA has mandated notification under Section 5; and that includes any strictures imposed on chemicals by the EPA under Sections 5 or 6 prior to the enactment of CICA. The discussion draft would preserve state or local laws or regulations adopted or authorized pursuant to any other federal law and judicial cause of action under state law for personal injury, death or property damage.
To the dismay of TSCA detractors, and consistent with CSIA's approach, the judicial standard of review in CICA remains the more-stringent "substantial evidence" standard. This contrasts with the more-forgiving "arbitrary, capricious, abuse of discretion" standard in other federal environmental statutes urged by those who advocate TSCA reform in this regard.
Shimkus states the subcommittee will hold hearings on TSCA reform in March. He intends to introduce a bill for markup in April 2014, and hopes to take it to the floor in May.
FAR FROM A CONSENSUS
The House discussion draft does little to reconcile the widely divergent views of TSCA stakeholders on such core issues as the safety standard, preemption, standard for judicial review, and need for deadlines to ensure timely EPA action. A variety of new terms will need thorough legislative vetting before easing concerns of critical stakeholders. The draft restricts EPA's imposing limitations on specific uses of a chemical substance to only when "technologically and economically feasible alternatives that materially reduce risk to human health or the environment compared to the use proposed to be prohibited or substantially prevented are available and likely to be used as a substitute for the use proposed to be prohibited or substantially prevented." This is a high burden, and likely to invite strenuous opposition.
Representative Henry Waxman (D-CA), ranking member of the House Energy and Commerce Committee, criticized the discussion draft. Similarly, the Environmental Defense Fund stated that its "preliminary review of the posted draft has identified very serious concerns that, if not addressed, would fail to fix key flaws in TSCA and would weaken current law."
The good news is the House is engaged. The bad news is key CICA provisions already are drawing fierce criticism from stakeholders. While the absence of even a glimmer of receptivity is not necessarily fatal, it doesn't move the needle appreciably and will make the task of compromise all the more difficult.
LYNN BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at email@example.com
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006).