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TSCA Modernization Proposals in Congress: Recent History and Prospects

Beveridge & Diamond, P.C., February 25, 2013

The core provisions of the Toxic Substances Control Act (TSCA) have not been substantially changed since the law’s passage in 1976, but efforts to modernize the law have seen a marked increase in intensity in recent years.[1] Democratic bills have been introduced in the last three sessions of Congress.  The legislation has been refined each time, but no bill has yet passed either House. The leaders behind the previous bills are looking to try again in 2013. This time, Republicans are planning to introduce TSCA modernization legislation as well, which is sure to significantly change the discussion. This report discusses the political setting for these TSCA modernization efforts, the likely shape of the anticipated Democratic and Republican bills, and the prospects of passage.

A.  Impacts of the 2012 Election

The retention of the White House by President Obama means continued support from the Executive Branch for legislation to modernize TSCA, even with Lisa Jackson no longer at the helm of environmental policy as Administrator of EPA. The President is not likely to make chemicals management a top priority for spending political capital, however, given a long list of other pressing and controversial issues such as budget and spending, immigration, gun control, and climate change. The Administration will continue to try to enhance chemicals management under its existing TSCA authority.[2]

As a result of the November 2012 election, Democrats in the Senate slightly expanded their majority, from 53 to 55 (including independents caucusing with the Democrats).  Republicans retained control of the House of Representatives with only a slightly smaller majority of 233 as opposed to its majority of 242 in the previous Congress. Just as in recent sessions of Congress, this divided government will present a serious, although perhaps not insurmountable, obstacle to the passage of any comprehensive TSCA modernization bill.

Within Congress, the committees with jurisdiction over TSCA will act as incubators and gatekeepers for TSCA-related legislation and will determine its content, timing, and prospects. These committees have seen some changes in personnel and positions. Senator Barbara Boxer (D-CA) remains Chairman of the Senate Environment and Public Works (EPW) Committee, but Senator Frank Lautenberg (D-NJ), long the lead voice for TSCA reform in the Senate, is no longer Chairman of EPW’s Superfund, Toxics and Environmental Health Subcommittee, although he remains a member. Senator Lautenberg has promised to continue to promote the cause of TSCA reform within the Subcommittee, however. He announced in February 2013 that he will retire at the end of his current term in 2014, lending urgency to his goal to oversee passage of TSCA legislation. Senator Tom Udall (D-NM), the new Subcommittee Chairman, is likely to be fully supportive.

On the Republican side, Senator David Vitter (R-LA) has become the Ranking Member of the EPW Committee, taking over from Senator James Inhofe (R-OK), who remains a senior member. Senator Vitter has embraced a lead role in TSCA talks. Senator Mike Crapo (R-ID), who like Senator Vitter has supported TSCA modernization in general but opposed the Democratic efforts thus far, remains the Ranking Member of the Superfund, Toxics and Environmental Health Subcommittee. Several, but not all, Committee staff members have changed since the last Congress.[3]

The House Energy and Commerce Committee, chaired by Representative Fred Upton (R-MI), has recently been letting the Senate take the lead in TSCA legislation discussions. Representative John Shimkus (R-IL) remains Chairman of the Subcommittee on Environment and Economy. He recently indicated that he anticipates that the House will continue to take a back seat on TSCA, although he also expressed skepticism of any bill’s passage.

B.  Democratic Bill: Safe Chemicals Act of 2011

The TSCA legislation introduced in the last Congress by Senator Lautenberg was the Safe Chemicals Act of 2011 (SCA), S. 847. It passed a vote in the Senate Environment and Public Works Committee on July 25, 2012, with significant amendments.[4] The committee vote was along partisan lines. The bill did not see further activity and died at the end of the 112th Congress. Nonetheless, the passage of the revised bill out of committee marked another important point in the evolution of TSCA modernization proposals in Congress. Sponsors and supporters of the SCA indicated repeatedly to observers that they had invested a large amount of time and effort in revising the bill’s various provisions, and that they viewed the results as a reasonable set of compromises with industry interests. Thus, the bill anticipated to be reintroduced in the current Congress is unlikely to differ substantially from the version passed out of the EPW Committee last year, although it may be revised in some respects before reintroduction. That version therefore sets the stage for TSCA discussions in the current Congress.

The original version of the bill was summarized in a previous Beveridge & Diamond, P.C. client alert.[5] The July 2012 amended version retained most core elements of the 2011 version, including provisions on TSCA sections 3 (definitions), section 7 (imminent hazards), 9 (relationship to other federal laws), 11 (inspections and subpoenas), 12 (exports), 13 (imports), and 15-28 (enforcement, preemption, and administrative matters), and its additions of new sections 29-38 (children’s environmental health program, reduction of animal testing, green chemistry, information quality, identification of “hot spots,” and international matters). Importantly, the stringent “reasonable certainty of no harm” safety standard proposed in previous versions of the SCA also remained. The July 2012 amendments also made relatively minor changes to the provisions proposed for the new section 4 on minimum information sets (formerly described as minimum data sets) and testing, mainly in the direction of imposing additional burdens on industry.

However, the July 2012 revisions made a number of important changes to categorization, prioritization, and risk management for both new (section 5) and existing (section 6) chemicals. A new process would be instituted to assess existing chemicals. It would begin by assigning the chemicals to “batches” of approximately 6,000 chemicals, then proceed with categorization within each batch. The four categories established are substances of very low concern (SVLCs), substances of very high concern (SVHCs), substances with insufficient information, and substances to undergo safety standard determinations (SSDs). SVHCs would proceed immediately to risk management, while substances to undergo SSDs would then be prioritized and assessed before the imposition of any conditions or other risk management measures EPA deemed necessary to meet the safety standard. Only very limited exemptions and extensions would be available. The July 2012 amendments also tweaked the previous version’s provisions regarding inventory declarations, recordkeeping, and reporting for existing chemicals.

For new chemicals, the process proposed under the revised SCA was aligned with that for existing chemicals. New chemicals were to be categorized either (1) as having to undergo an SSD or (2) as being of very low concern, in either case allowing manufacture to proceed; or, (3) if categorized as one of very high concern, EPA could allow manufacturing or processing only to the extent that the submitter establishes by clear and convincing evidence that uses of the new substance meet certain exemption criteria. The SCA also would have limited new chemical notice exemptions and revises provisions for new uses and variant of chemicals.

The July 2012 SCA amendments would have imposed substantial burdens and tight timelines on both industry and EPA for a wide range of tasks and responsibilities. In passing the revised SCA, the EPW Committee directed the Congressional Budget Office (CBO) to assess the bill. In an analysis released in October 2012, CBO estimated that implementing the SCA would cost the government $128 million in new administrative costs over the next five years, assuming appropriation of necessary amounts.[6] CBO also found that “[a]ccording to information from industry experts, manufacturers and processors of chemicals could incur costs of $1 million or more per chemical to demonstrate compliance with safety standards. In addition to the requirements on manufacturers and processors, any regulations governing the use and disposal of chemicals and the inspection of facilities also would impose mandates on private entities.”

In light of Republican and industry opposition,[7]the SCA had little chance of becoming law in the last Congress. As noted above, the split between the Democratic Senate and the Republican House will render any legislation more difficult to pass, but particularly legislation that has become as partisan as the SCA. Nonetheless, Senator Lautenberg is expected to reintroduce the SCA this spring, and to promote TSCA reform vigorously over his remaining two years in the Senate. NGOs also continue to press for action.[8] EPA officials have signaled their continuing support for the Administration’s principles for TSCA reform set forth in 2009 and have offered technical support and analysis as legislation continues to develop.

C.  Republican Bill Anticipated to Be Introduced by Sen. David Vitter

Senator Vitter and Republican colleagues are working on an alternate Republican bill to modernize TSCA. Such a proposal could crystallize the similarities and differences in stakeholders’ perspectives, and could potentially enable a more constructive dialogue. The Republican bill is anticipated to be narrower than the Democratic bill and to reflect a number of industry concerns, including a different safety standard than the “reasonable certainty of no harm” standard in the Democratic bills to date. However, Senator Vitter’s office has kept a tight hold on the bill, and few details are publicly available. It is also unknown when the bill will be released, but observers say there is a high chance the bill could be available in the spring of 2013.

The American Chemistry Council, an industry trade group, expressed hope that the Republican bill’s sponsors could recruit a number of bipartisan co-sponsors and encourage action in the House.[9] Environmental NGOs, however, have expressed skepticism in advance of the Republican bill’s release.[10]

D.  Conclusion

As noted above, any significant legislation in the current Congress, including TSCA modernization, will face up against partisan divisions and a high number of competing priorities. Support for TSCA legislation, in particular, has become deeply divided along partisan lines. The introduction of a Republican proposal will change the conversation. If it is rejected by Democrats to the same degree that Republicans have rejected Democratic proposals, however, it is possible that partisan divisions will become even more entrenched. On the other hand, there is broad support to modernize U.S. chemicals management as a general matter, as well as increasing impatience by the voting public with Congressional difficulties in working effectively toward common goals. These political considerations may lead politicians on both sides at least to take a closer look at the competing proposals before declaring TSCA legislation dead for another Congressional term.

Prospects for TSCA legislation will be shaped by a number of factors outside Congress as well, including EPA’s progress implementing its work plan to assess existing chemicals under its existing TSCA authority.[11] Senator Lautenberg, for example, has both welcomed EPA’s efforts and argued that they are insufficient and therefore additional assessment authority is needed.[12] Also putting pressure on federal chemicals legislation is the proliferation of state-level chemical regulations. In the absence of federal TSCA legislation, 19 states have introduced 41 bills so far this year to regulate chemical exposures, primarily in consumer products, including bills banning specific chemicals from specific uses and bills authorizing state authorities to identify chemicals of high concern and mandating the use of alternatives to chemicals of high concern when available.[13]

In light of the importance of the issues at stake, legislation to modernize TSCA will be closely monitored by a wide range of industry sectors, NGOs, federal, state, and local government officials, and many in the public. It remains to be seen whether this attention will help Congress to overcome partisan roadblocks in the current session, but it is anticipated that 2013 will be a crucial year for chemicals management law in the United States.

For more information about these and other TSCA developments in Congress and at EPA, please contact Mark Duvall, mduvall@bdlaw.com, or Alexandra Wyatt, awyatt@bdlaw.com.  For a PDF version of this article, click here.


[1] See Beveridge & Diamond, P.C., “Update on TSCA Developments in Congress and at EPA” (March 22, 2012), http://www.bdlaw.com/news-1328.html; Beveridge & Diamond, P.C., “TSCA Developments in Congress and at EPA” (Aug. 11, 2011), http://www.bdlaw.com/news-1193.html.

[2] See Beveridge & Diamond, P.C., “TSCA Implementation at EPA: Looking Ahead” (Feb. 22, 2013), http://www.bdlaw.com/news-1444.html.  

[3] See Amy Harder, “Vitter Purges Environment Committee Staff,” National Journal (Jan. 9, 2013), available at http://www.nationaljournal.com/congress/leadership/vitter-purges-environment-committee-staff-20130109.

[4] Amendment to S. 847 http://www.gpo.gov/fdsys/pkg/BILLS-112s847rs/pdf/BILLS-112s847rs.pdf; see also Report and Minority Views to accompany S. 847 (Dec. 12, 2012), available at http://www.gpo.gov/fdsys/pkg/CRPT-112srpt264/pdf/CRPT-112srpt264.pdf.

[5] See Beveridge & Diamond, P.C., “Senator Lautenberg Proposes Revised TSCA Legislation” (Apr. 22, 2011),

http://www.bdlaw.com/news-1121.html.

[6] CBO, Cost Estimate for S. 847, Safe Chemicals Act of 2011 (Oct. 2, 2012), available at http://www.cbo.gov/publication/43651.

[7] See, e.g., Multi-Industry Letter to Senators re Toxic Substances Control Act (TSCA) Reform (Aug. 21, 2012), available at http://www.uschamber.com/sites/default/files/hill-letters/TSCA%20ltr%2008_20_12.pdf.

[8] See, e.g., Letter from Safer Chemicals, Healthy Families et al. to Sen. Harry Reid et al. re Safe Chemicals Act (Aug. 21, 2012), available at www.eenews.net/assets/2012/08/22/document_gw_02.pdf.

[9] See, e.g., Joe Kamalick, “GlobalChem 2013: Seeking Clarity for Chemical Commerce,” ICIS (Feb.. 22, 2013), http://www.icis.com/Articles/2013/02/22/9643489/globalchem-2013-seeking-clarity-for-chemical-commerce.html.

[10] See, e.g., Transcript, “Safer Chemicals’ Igrejas discusses Lautenberg's legislative push on safety reform,” E&E TV (Feb. 21, 2013), http://www.eenews.net/tv/transcript/1644.

[11] See Beveridge & Diamond, P.C., “TSCA Implementation at EPA: Looking Ahead” (Feb. 22, 2013), accompanying this report.

[12] Sen. Lautenberg Press Release, “Senator Lautenberg Applauds EPA Chemical Risk Assessments; Lautenberg Pledges to Continue Effort to Reform Broken Chemical Laws” (Jan. 4, 2013), http://lautenberg.senate.gov/newsroom/record.cfm?id=338215&&.

[13] See Beveridge & Diamond, P.C., “States Propose to Regulate Chemicals While Congress Debates TSCA” (Feb. 25, 2013), http://www.bdlaw.com/news-1446.html.