May 13, 2015

Senate Environment and Public Works Committee Approves TSCA Reform Bill with Amendments

On April 28, the Senate Environment and Public Works Committee (EPW) held a
full-committee markup and passed Sen. Tom Udall’s (D-NM) and Sen. David Vitter’s (R-LA) legislation, S. 697, “The Frank R. Lautenberg Chemical Safety for the 21st Century Act.” The legislation seeks to update the 39-year-old Toxic Substances Control Act (TSCA) and is a product of months of bipartisan negotiations. The legislation passed with broad support with a vote of 15-5.

TSCA was enacted in 1976 to protect the public by regulating chemicals that may be harmful to human health and the environment. Given that the core provisions of the law have not been updated since its passage, stakeholders and Congress alike have advocated for reform in order to address the inefficiencies of the current regulations. The Frank Lautenberg Chemical Safety for the 21st Century Act builds on and bolsters the progress made with the Chemical Safety Improvement Act (S.1009) introduced last year by making a number of improvements to the current law, including:

  • Ensuring the safety standard is purely risk-based so the U.S. Environmental Protection Agency (EPA) cannot consider costs when determining the safety of a chemical;
  • Requiring the protection of vulnerable subpopulations;
  • Strengthening deadlines for the EPA to evaluate existing chemicals;
  • Adding new structure and requirements for confidential business information claims;
  • Creating a system to prioritize chemicals so that EPA’s resources are devoted to evaluating potentially dangerous, active chemicals in commerce;
  • Giving EPA more authority to request health and safety testing of chemicals;
  • Creating federal preemption provisions that balance the interests of states and EPA; and
  • Giving EPA the resources it needs to carry out the TSCA program by giving EPA the authority to impose narrowly tailored user fees.

The bill secured 22 cosponsors (11 Democrat and 11 Republican) before the Senate EPW Committee markup. In an effort to bring on more bipartisan support, Senator Vitter introduced a Manager’s Amendment that would amend S.697 to address several concerns from other members of the EPW Committee. This Manager’s Amendment passed and the changes will be incorporated into the bill when it is reported out of committee. No other amendments offered by members of the Committee passed.

The key changes to the bill made in the Manager’s Amendment include the following:

Pre-emption: Before the markup, S. 697 would have “grandfathered in” existing state regulations on chemicals that are in effect on or before Jan. 1, 2015 (to the extent that a state has taken a specific action on a chemical such as a ban). During the markup, that date was moved back to Aug. 1, 2015.

Additionally, while the bill preserves the “high priority pause” (meaning that once EPA has designated a chemical as high priority and determined the scope of its safety assessment, states cannot take new actions on that chemical), the amendments shorten the preemption period from 5-7 years to 3-5 years, the amount of time in which EPA must complete a safety assessment. Once EPA completes a safety assessment and determination that the chemical does or does not meet the safety standard, both new and existing state regulations are preempted by EPA’s decision. The amendments also clarify that state air and water laws and information collection and disclosure laws are not pre-empted.

Also, the amendments allow for state waivers of a chemical to be automatically granted if EPA fails to meet its deadline for the safety determination for that chemical, or if EPA does not make a decision on a state waiver within 90 days. Also, the changes would require EPA to approve state waivers if they meet the following criteria: the state requirement does not violate federal law, the state requirement does not unduly burden interstate commerce, and the state’s concern about the chemical is based on peer-reviewed science.

Safety Standard: In order to be more consistent with the language of the current TSCA statute, the safety standard language was amended from requiring EPA to assess whether a chemical presents an “unreasonable risk of harm to human health or the environment” to “unreasonable risk of injury…”

Co-enforcement: Based on a number of concerns from Senate EPW Committee members, these amendments allow states to have the ability to co-enforce identical federal regulations promulgated by EPA under TSCA. However, states would not be permitted to collect penalties if EPA has already done so for a particular violation, and state penalties cannot be greater than penalties levied under federal EPA.

Low priority chemicals: the amendments allow for EPA designations of low priority chemicals to be subject to judicial review.

PBTs: the amendments require EPA to give preference to TSCA Work Plan Chemicals that are persistent and bioaccumulative toxic chemicals (PBTs), and PBTs are now added as a criteria for EPA to consider when making prioritization determinations.

Animal testing: the amendments require that, for the purposes of TSCA submissions to EPA, industry look at available alternatives to animal testing.

Deadlines: the amendments say that 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.”

Industry-requested safety assessments: the amendments increase the amount of chemical safety assessments that industry can request to a maximum of 30 percent of the total number of high priority chemicals. Industry still must pay 100 percent of the costs for these assessments. Also, for chemicals that 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 percent of the cost. EPA has full discretion to approve or deny these industry petitions.

ACA believes that S. 697 is a pragmatic compromise that balances the interests of multiple stakeholders while making significant improvements to chemicals management and facilitating a more cohesive federal approach to chemical regulation. ACA is hopeful that members of Congress will continue to recognize the importance of TSCA reform and work in a bipartisan manner for passage. Toward that end, ACA staff continues to participate in Hill visits to urge Congress to progress TSCA reform. The bill may potentially receive floor time as early as June 2015, and ACA will continue to supports its passage.

ACA members are encouraged to send letters to their senators urging passage of the TSCA bill, and may do so through ACA’s CoatingsConnect grassroots advocacy website at, under the “Take Action” tab.

In the meantime, the House Energy and Commerce Committee, Subcommittee on Environment and the Economy is expected to amend and mark up its draft TSCA legislation, the “TSCA Modernization Act,” on May 14. Of note, during the Senate EPW hearing, Sen. Kirsten Gillibrand (D-NY) offered an amendment to have the S.697 adopt the pre-emption language in the House discussion draft. That amendment was defeated in committee.


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