At long last, with a 15-5 bipartisan vote, a Senate bill that would amend the Toxic Substances Control Act (TSCA) moved out of the Senate's Environment and Public Works Committee. Notwithstanding continuing objections from Senator Boxer, the bill that came out of the committee contained a host of changes from the original bill that were intended to address concerns that had been raised by democrats, environmental and public health advocates and U.S. EPA.
Several of these key changes include:
Existing Information to Increase Efficiency
- U.S. EPA will incorporate existing information regarding hazard and exposure published by other Federal agencies or the National Academics into safety assessments, with the objective of increasing the efficiency of the safety assessments and determinations where that information is available, relevant, and scientifically reliable.
- The term "unreasonable risk" is either clarified to exclude consideration of costs or other non-risk factors to conform with the safety standard definition, or the word "unreasonable" is dropped.
Deadline for Implementing Restrictions and Prohibitions
- Compliance deadlines for risk management rules are to be "as soon as practicable," and bans and phase-outs are to be implemented "in as short a period as is practicable."
Access to CBI Information
- If U.S. EPA bans or phases out a chemical, there is a rebuttable presumption that information on that chemical should no longer be protected as confidential business information.
- States allowed to co-enforce, with condition that penalties can be collected from either Federal government or State and penalties at the state level cannot be greater than under federal TSCA.
- Clarification that State air and water laws are not pre-empted.
- State information collection and disclosure laws are protected from pre-emption.
- Any State chemical regulation is permanently protected from pre-emption that is in effect before August 1, 2015.
Designation of a Low Priority Chemical
- 90 days of public comment for all listing decisions.
- Public can challenge a low priority decision within 60 days of listing.
Clarifications of High Priority Designation
- U.S. EPA required to designate a chemical as high priority based on "significant" hazard and "significant" exposure, and may designate a chemical as high priority if it has either characteristic.
- When setting the initial list of high priority chemicals, U.S. EPA must give preference to TSCA Work Plan Chemicals that are persistent and bioaccumulative.
- PBTs added as a criteria for U.S. EPA to consider when making prioritization determinations.
- In risk management, U.S. EPA is required to select restrictions for PBTs that reduce exposure "to the maximum extent practicable."
- Pre-emption of new state regulatory actions starts when the scope of uses of a chemical is defined (maximum 6 months after a substance is identified as a high priority) and ends when the safety determination is made (no more than 5 years after a substance is identified as a high priority).
- If the deadline for the safety determination is missed, State waivers are automatically granted.
In addition, U.S. EPA "shall" approve a state request for a waiver if the state meets the following criteria:
- The State requirement doesn't violate Federal law.
- The State requirement doesn't unduly burden interstate commerce.
- The State's concern about the chemical substance or the use of the chemical substance is based in peer-reviewed science.
- If U.S. EPA fails to make a decision on a state waiver within 90 days, the waiver is approved.
Industry Petitioned Chemicals
- In addition to high-priority chemicals designated by U.S. EPA, manufacturers and processors can petition U.S. EPA to designate additional non-high priority chemicals for safety assessments and determinations.
- The industry would pay 100% of the cost of the assessment.
- These chemicals can amount to a minimum of 25% and a maximum of 30% of the cumulative total number of high priority chemicals.
U.S. EPA Work Plan Chemicals
- For chemicals that U.S. EPA has already identified as high risk chemicals on the TSCA Work Plan, manufacturers can petition for those chemicals to move to a safety assessment and determination, and pay 50% of the cost. U.S. EPA has full discretion to approve or deny these industry petitions.
The revised Senate bill seems to enjoy wide bi-partisan support and has been embraced by several advocacy groups, including the Environmental Defense Fund However, Senator Boxer has already indicated that she intends to pursue additional changes to the bill, stating "if anyone thinks the fight is over, it is just beginning."
Another bill to amend TSCA is also making its way through the House of Representatives. The discussion draft, captioned the "TSCA Modernization Act of 2015" was released by Representative John Shimkus. The House's discussion draft is much narrow in scope than the bill making its way through the Senate and has yet to make its way out of the House Energy and Commerce Subcommittee on Environment and Economy.
Assuming that the House bill makes it out of committee, the expectation is that the two chambers will have to reconcile the differences in the two bills in a conference committee.