Beveridge & Diamond
 

Prospects for TSCA Legislation in the 112th Congress

Beveridge & Diamond, P.C., January 28, 2011

The Toxic Substances Control Act (TSCA) has not been amended for over 34 years, but not for lack of critics or legislative effort in recent years.  Whether it will be amended in the new Congress, with its Republican majority in the House of Representatives, is unclear.  At this early point, there are reasons to think that TSCA legislation may receive serious consideration.

This article assesses the significance of the election for TSCA legislation by distilling some lessons from the legislation introduced in the 111th Congress and addressing the overall prospects for TSCA legislation in the 112th Congress. 

1.        Why did TSCA Legislation Not Pass in the 111th Congress?

Despite a Democratic President and Democratic majorities in both Houses of Congress, TSCA legislation did not get out of committee, or even go to mark-up, in either House.  There are several reasons why the legislation did not get further.

First, other priorities prevented a clear focus on TSCA legislation.  The economy, health care, and climate change were higher priorities, thus limiting the time available for TSCA.

Second, it was clear that TSCA is not well understood among the Members of Congress.  The original statute was passed decades ago, and no bills to overhaul it significantly had been introduced until 2005 and 2008 (the Kid-Safe Chemicals Act), neither of which went far.  Congress had conducted only limited oversight of TSCA implementation before 2009.  Thus, much of 2009 and early 2010 was spent educating the Members and their staffs on TSCA. 

Third, it is important to recognize that TSCA legislation is likely to be a multi-year effort, and 2009 and 2010 were really the first of several years that may be needed for legislation to pass.  The original TSCA legislation was proposed in 1971 and took six years to pass.  REACH was debated for six years in the EU before passage.

Fourth, while problems with TSCA had already been identified, there had been no previous consensus on the provisions of an amended TSCA.  During 2009, various stakeholder groups developed their own statements of principles for TSCA legislation.  At the 30,000-foot level, these statements are generally consistent with each other.  The legislation introduced in 2010 translated those concepts into concrete language, but not in a way that satisfied most industry stakeholders.  More work remains to be done on forging a consensus on what an amended TSCA should provide.

Fifth, the 2010 legislation included provisions that attracted considerable opposition.  Some of those provisions are discussed below.

2.        Lessons From the 2010 Legislation for Future Legislation

The legislation introduced in 2010 failed to win significant industry support.  As pointed out in the July 29, 2010 hearing on the House bill, much of industry had an overall concern about potential adverse effects of the legislation on innovation and jobs, two themes likely to resonate in the 112th Congress.  Without significant industry support, TSCA legislation is unlikely to move forward in this Congress.  The following aspects of the legislation caused significant resistance on the part of industry.

The legislation was perceived by some in industry as fulfillment of NGO wish-lists, with industry viewpoints considered only at the margin.  For TSCA legislation to succeed, industry will need to have more influence on the content of the legislation.

The legislation would have followed generally the model of chemical registration used in regulating drugs and pesticides.  EPA would evaluate every chemical (regardless of hazard or exposure) on the basis of an extensive database against a very protective safety standard, and impose controls on any chemical not meeting that standard.  That model was perceived by many in industry as inappropriate for industrial chemicals, for two reasons.  First, that approach was seen as impractical; there are only about a thousand pesticide active ingredients, each of which takes millions of dollars in testing and years to reach approval, but there are tens of thousands of industrial chemicals.  EPA does not have the resources to review that many chemicals that intensively, nor is it likely to get the resources necessary to do so.  Meanwhile, innovation would be impacted while waiting indefinitely for EPA to review chemicals.  Second, the model was perceived by some as overkill.  Whereas drugs and pesticides are designed to be biologically active, industrial chemicals are not.  Whereas drugs are deliberately used in or on the human body and pesticides are deliberately applied to the environment, industrial chemicals are not.  Because there may be potential human and environmental exposure to industrial chemicals, regulation of some kind is seen as appropriate, but not the heightened scrutiny appropriate for drugs and pesticides.

The idea that industry has the burden of proof, a key part of the 2010 legislation, is already present in the current TSCA.  Section 2(b) states:

It is the policy of the United States that-- (1) adequate data should be developed with respect to the effect of chemical substances and mixtures on health and the environment and that the development of such data should be the responsibility of those who manufacture and those who process such chemical substances and mixtures ....

The 2010 legislation would have applied that burden of proof idea to all chemicals at once, requiring industry to provide data on tens of thousands of chemicals within just a few years.  There would have been no exceptions for low-risk chemicals such as high-molecular-weight polymers or low-volume chemicals.  The requirement would have applied to far more chemicals than EPA could possibly review, so that data availability itself became a key requirement, rather than EPA review of that data being the goal.  This meant that the legislation would have had high costs and burdens, but with limited regulatory significance.  Accordingly, to be successful, future legislation may need to limit data development requirements to those chemicals that EPA is likely to review within a limited time period.

The legislation would have applied requirements for existing chemicals to new chemicals, which raised industry concerns about adverse impacts on innovation.  Under the current statute, EPA mostly uses modeling rather than test data to identify the risks of new chemicals.  NGOs and EPA itself questioned the reliability of modeling as a substitute for data on new chemicals, and the legislation would have required development of data on new chemicals for EPA review prior to commercialization.  Many in industry regard the new chemicals program at EPA as one of the leading successes of TSCA, although there is some recognition that modeling may be less useful for entirely new materials such as nanomaterials.  There is also industry concern about the need to pay for testing on chemicals that have not proven their commercial viability and that have not generated any revenue to pay for the testing.  The legislation would also have extended the EPA review period for new chemicals and new uses of chemicals from 90 days to up to 18 months, during which time new chemicals and new uses could not be commercialized.  These provisions led to considerable concern about adverse impacts on innovation.  Future legislation may need to adopt a different approach for new chemicals and new uses of existing chemicals.

The legislation would have changed the current TSCA rulemaking standard of “unreasonable risk,” which has proven to be very difficult for EPA to satisfy, to “reasonable certainty of no harm,” which was expected to be very difficult for most chemicals to satisfy.  The problems with the current TSCA standard need to be addressed in future legislation, but the legislation may not succeed if it sets an impossibly high standard, one that approaches zero risk.

A problem perceived with the current TSCA is its lack of deadlines for EPA to review existing chemicals.  The 2010 legislation would have imposed stringent deadlines for EPA review, which were perceived by many as unrealistic.  The legislation would also have imposed burdens on industry if EPA were to miss its deadlines, which burdens were perceived as adversely affecting innovation.  Deadlines may be a good thing, but future legislation should tailor them to realistic expectations of what EPA can reasonably achieve.

Another problem with the current TSCA is thought to be its handling of confidential business information, with far too much information considered to be kept from the public.  The 2010 legislation would have imposed both procedural restrictions on confidentiality claims, such as up-front substantiation requirements and time limits on approved claims, and substantive restrictions on the ability to keep chemical identities confidential.  Many in industry were willing to accept reasonable procedural requirements, but there is no consensus on the appropriate limits for the confidentiality of chemical identities.

Preemption of state laws is a key motivation for industry support for TSCA reform.  The 2010 legislation would have removed TSCA’s current preemption provision.  Democrats generally oppose federal preemption of state legislation, which may complicate negotiations on a new TSCA bill.

Procedural burdens on EPA under the current TSCA were addressed in the 2010 legislation by removing almost all procedural protections.  For example, neither bill would have provided for notice and opportunity to comment on EPA bans or controls on chemicals, and the Senate bill would have precluded judicial review of EPA bans.  A more balanced set of procedures will be needed for future legislation, since stakeholder comments inform and improve regulations.

A little-recognized aspect of the 2010 legislation was its removal of current TSCA exceptions for small businesses.  The legislation would also have imposed equal data obligations on small businesses as on larger ones.  This issue could become contentious in future legislation, given Republican concerns for small business.

Several other aspects of the legislation could be addressed as well, such as data compensation and industry funding of TSCA.

3.        Prospects for TSCA Reform in the 112th Congress

A.        Senate

The Senate in the 111th Congress had 56 Democrats, 2 Independents, and 42 Republicans (an effective 58% Democratic voting share).  At the start of the 112th Congress, there were 51 Democrats, 2 Independents, and 47 Republicans (a 6-seat gain for Republicans, for an effective 53% Democratic voting share).

The Senate committee with jurisdiction over TSCA, the Environment and Public Works Committee, continues to be chaired by Senator Barbara Boxer (D-CA).  Senator Boxer is a strong proponent of TSCA reform. 

The Senate subcommittee with TSCA jurisdiction, the Subcommittee on Superfund, Toxics, and Environmental Health, will continue to be chaired by Senator Frank Lautenberg, also a strong TSCA reform proponent.  He sponsored TSCA legislation in 2005, 2008, and 2010.  The ranking member will continue to be Senator James Inhofe (R-OK).  Although strongly conservative, he has made several statements cautiously supportive of TSCA reform.  For example, on October 26, 2010 he issued a statement for a TSCA hearing saying “I commit today to work with [Senator Lautenberg] to develop legislative solutions to the extent they are needed and according to what the best available science is telling us.” 

Sen. Lautenberg has scheduled an initial TSCA hearing for the first week of February, 2011.  Thus, he is not waiting long to restart the TSCA debate in the Senate.

B.                House of Representatives

Before its close, the House of Representatives in the 111th Congress had 255 Democrats and 179 Republicans (for a 59% Democratic voting share, with 1 vacancy).  At the start of the 112th Congress there were 193 Democrats and 242 Republicans (a 64-seat gain for Republicans, resulting in a 56% Republican voting share).

The House committee with jurisdiction over TSCA, the Energy and Commerce Committee, is chaired by Representative Fred Upton (R-MI).  This choice by the House Republican leadership is a critical factor in the prospects for TSCA legislation in this Congress, as Upton is a member of the moderate Republican Main Street Partnership.  His rivals for the post were all more conservative.  The previous committee chair, Henry Waxman (D-CA), a strong TSCA reform proponent, is ranking member. 

On January 20, 2011, Rep. Upton released an agenda for the Energy and Commerce Committee that included consideration of TSCA, albeit in restrained terms:

Enacted in 1976, TSCA is the only Federal environmental law that regulates all forms of chemical manufacturing from “cradle to grave.”  Several public and private interests seek changes to TSCA, but they vigorously disagree on what the problems and solutions are.  Robust oversight to understand existing authorities should precede major legislation.

Thus, any consideration of TSCA on the House side is likely to begin with oversight hearings.

The House subcommittee with jurisdiction over TSCA, the new Subcommittee on Environment and Economy, is chaired by Representative John Shimkus (D-IL), who is regarded as more conservative than Rep. Upton.  The ranking member is Representative Gene Green (D-TX).  The chair of the former Energy and Commerce subcommittee with jurisdiction over TSCA, Representative Bobby Rush (D-IL), will not be a member of this subcommittee.  Upon becoming ranking member, Rep. Green declared, “[w]e do need to update the TSCA ....  It’s not an industry versus environmental issue.  [Both sides] want to open it up and bring [the law] up to today’s standards.” 

C.                Analysis

There is some chance that TSCA legislation simply will not progress in the 112th Congress.  It is clear that TSCA reform is not on the list of first-year priorities for Republicans in the House.  That list includes repeal of health care, reining in EPA on greenhouse gases, and addressing other “job-killing” regulations.  The House Energy and Commerce Committee, which is responsible for TSCA, also handles those issues.  Thus, TSCA will have to compete for attention without a current Republican champion.  The committee chair, while generally seen as moderate, appears eager to establish his conservative bona fides.  TSCA legislation would also seem to go against the Republican goal of working toward a smaller and less intrusive federal government. 

On the other hand, it may be a mistake to assume that TSCA legislation will not be considered in the 112th Congress.  It is noteworthy that Rep. Upton chose to include TSCA in the committee’s agenda.  TSCA reform is the only environmental legislation being mentioned as possibly being passed by the 112th Congress.  One reason is the expectation that over the two years of this Congress, at some point Republicans will want to be “for” something in the environmental area, not just “against” things.  Another reason is the support of important industry stakeholders that developed during the 111th Congress.

That industry support arose for several reasons, which mostly continue to apply:

  • In 2009, there was a Democratic President and both Houses of Congress were controlled by Democrats.  That may have created a sense that TSCA legislation was likely to move, so industry should be part of the process.  Now TSCA has become a focus for continuing public policy debate, notwithstanding that the Democratic President is weakened and Republicans control the House.  President Obama still has significant power.  In the Senate, Democrats still have a small edge, so at least the Senate may propose TSCA legislation.
  • A key industry concern is public distrust of chemicals and industry.  This distrust probably increased during the 111th Congress, given developments such as publicity about the use of chemical dispersants for the oil spill in the Gulf of Mexico, and public concerns about bisphenol A, phthalates, and other chemicals.
  • Another key industry concern is state regulation of chemicals, creating diverse state laws.  State regulation of chemicals is also stronger than ever, both of individual chemicals (e.g., seven states passed bisphenol A legislation in 2010) and more broadly (e.g., California’s Green Chemistry Initiative).  With Jerry Brown as governor of California, the Green Chemistry Initiative is likely to keep moving forward.  This movement is gaining strength in the vacuum resulting from a weak TSCA.  Even without a preemption provision, an amended TSCA could reduce the drivers for state chemicals regulation requirements.
  • REACH is now a reality, showing that modern chemicals management legislation can be implemented.  REACH is often perceived by industry as a model of what not to adopt.  REACH is now much more of a reality than earlier, with thousands of registrations for chemicals having been submitted by November 30, 2010.  Investment in REACH compliance could become a competitive advantage under a modernized TSCA.  Data produced under REACH could also make TSCA data requirements more feasible to meet.
  • Industry cited changes in technology as a reason for TSCA reform.  Increasingly, greener chemicals are replacing older chemicals.  Government programs such as the Tox21 project promise high-throughput toxicology screening, vastly increasing testing capabilities, although not until years in the future. 

The support of some in industry for TSCA reform may have cooled, given the perceived problems with the 2010 legislation.  Others continue to support TSCA reform, but it is unclear if industry will push Republicans to consider TSCA legislation.

With industry support, there could be a window of opportunity to forge the meaningful compromises necessary for TSCA legislation to move forward.  Democrats would have the most to give up from the 2010 legislation, but they may be willing to compromise in order to achieve some improvements to TSCA.  They have tried the approach of the 2010 legislation and should recognize that that approach is not viable for the 112th Congress.  They face possible loss of the Senate in two years (Democrats must defend 23 Senate seats in 2012, Republicans only 10).  Accordingly, Democrats may regard the 112th Congress as a better forum for TSCA reform than they are likely to have in the future.  The Senate champion of TSCA reform, Senator Lautenberg, will be 90 years old when his term is up in 2014; he may be willing to compromise.

Industry supporters of TSCA reform may want to consider taking these steps:

  • Work through trade associations to develop concrete industry proposals.
  • Inform Congressional staff and members of both Houses that TSCA reform legislation remains important to industry, and why.
  • Provide examples of how TSCA reform can avoid being “job-killing” and promote greener products and the jobs that come with them.
  • Bring creative ideas on TSCA reform to Congressional staff for their consideration.  While Members of Congress are addressing higher priority issues, the hard work of developing a revised approach to TSCA legislation could proceed behind the scenes.
  • Push for a smaller, less-comprehensive bill than the 2010 legislation, which may be easier to pass.

In short, TSCA reform should remain on the table for industry in 2011.

For more information,  please contact Mark Duvall, mduvall@bdlaw.com, or Alexandra Wyatt, awyatt@bdlaw.com.

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