TSCA Reform Nears Enactment with Easy Passage in the House

The House of Representatives passed the TSCA Modernization Act of 2015 (H.R. 2576) on June 23, 2015, by a vote of 398 to 1, indicating that the long-awaited overhaul to the federal chemicals management law may be just around the corner. Among other updates to the Toxic Substances Control Act (TSCA), the House bill would require EPA to initiate risk evaluations of chemicals in commerce and adopt regulations if a chemical presents an unreasonable risk to human health or the environment under the intended conditions of use. In addition, the bill would expand EPA’s authority to require testing by manufacturers, adjust provisions protecting confidential business information, create the TSCA Service Fee Fund in the U.S. Treasury, and preempt state law where EPA issues a new rule or makes an “unreasonable risk” determination.

Activity in the House of Representatives

The passage of H.R. 2576 follows three months of significant legislative activity. The discussion draft of the TSCA Modernization Act, which was released by Rep. John Shimkus (R-IL) on April 7, preserved much of the existing TSCA framework but was criticized by Democrats and EPA for its ambiguities and deadlines. Following an April 14 hearing, a marked-up draft of the bill was approved by the Subcommittee by a vote of 21-0. A substantially similar bill was introduced on May 26. As introduced, H.R. 2576 incorporates expanded grandfather provisions, new deadlines for industry-initiated risk evaluations, an expedited review process for persistent, bioaccumulative and toxic chemicals, and the requirement that EPA initiate risk evaluations for 10 or more chemicals a year.

Since its introduction, H.R. 2576 has undergone only minor changes, despite last-minute efforts to amend the more controversial aspects of the legislation. On June 3, the House Energy and Commerce Committee held a markup for the bill. Rep. Anna Eshoo (D-CA) introduced and then withdrew an amendment that would have removed the bill’s hotly debated preemption provision. Rep. Shimkus also offered a technical amendment, which was adopted by the Committee. As amended, the legislation would prohibit EPA from “considering” information on cost and other factors not directly related to health or the environment during a risk evaluation, whereas originally EPA would have been prohibited from “including” such information in risk evaluation.

The most notable eleventh-hour amendment was made after the House Energy and Commerce Committee approved the TSCA reform bill. The amendment changed the deadline for manufacturer-initiated risk evaluations from 3 years, the timeframe applicable to EPA-initiated risk evaluations, to 2 years from the date of the manufacturer’s request. In addition, a provision was added that would allow for deadline adjustments if EPA lacks the resources necessary to perform risk evaluations and permit EPA to postpone collecting a fee from manufacturers for risk evaluations until the evaluation is initiated. These amendments respond to concerns from Democrats that EPA would be forced to focus on chemicals prioritized by industry, rather than those that EPA determines may present an unreasonable risk to public health and the environment. Republicans have accepted multiple changes to this aspect of the legislation, indicating their commitment to keeping industry-initiated evaluations in the bill.

Activity in the Senate

With the passage of TSCA reform legislation in the House, attention has turned to the status of the companion Senate bill, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697). Senate Majority Leader Mitch McConnell (R-KY) has stated that he would like to bring the Senate bill to the floor before the August recess, which begins August 10.

The Senate bill was the subject of a recent Congressional Budget Office (CBO) report, which indicated that the bill would reduce discretionary costs by $8 million from fiscal year 2016 to 2020, with the estimated $72 million in outlays for the implementation of the bill offset by the collection of $80 million in fees. A similar report was issued by the CBO for H.R. 2576, estimating that the House bill will cost $64 million to implement over the same five-year period, but would result in a decrease in direct spending of $45 million and a $46 million increase in revenue.

Reconciling Differences

There are substantial differences between the TSCA bill passed by the House and the bill awaiting a vote in the Senate. One major difference is the prioritization scheme for the assessment of existing chemicals in the Senate legislation, which is absent from H.R. 2576. In addition, one of the most polarizing aspects of the Senate bill, the “high priority pause,” does not exist in the House bill. This preemption provision would prohibit states from adopting new restrictions for a high-priority chemical substance between the time EPA defines the scope of a safety assessment and determination for the chemical and the time the safety determination is published. Once the Senate passes S. 697, as is expected, these and other discrepancies between the two bills will need to be resolved before the legislation is sent to the President to be signed into law.

One approach to resolving the differences between the Senate and House TSCA reform bills would be the formation of a conference committee. Senator Barbara Boxer (D-CA), ranking member of the Environment and Public Works Committee and a vocal opponent of the Senate bill, would likely be a conferee and play a large role in determining the other Senators appointed to the committee. In the alternative, Congress may elect to pursue amendments between the houses, also known as an “amendment exchange” or “ping-pong.” Under this procedural approach, the Senate would pass the House bill with amendments and send the legislation back to the House to accept, reject, or change the amendments. This back-and-forth would grant Republican leadership in the House and Senate significant leeway to reach a compromise, as they would have the opportunity to conduct informal negotiations without the formality of a Conference Committee.