House TSCA Modernization Act Gains Unanimous Bipartisan Support in
Subcommittee, But More Work to be Done
On May 14, 2015, the House of Representatives Environment and the Economy
Subcommittee unanimously reported its TSCA Modernization Act legislative proposal. The
draft is a result of bipartisan efforts led by the Subcommittee Chairman, John Shimkus (R-IL),
and supported by Subcommittee Ranking Member, Paul Tonko (D-NY), and the Chairman and
Ranking Members of the full Energy and Commerce Committee, Fred Upton (R-MI) and Frank
Pallone, Jr. (D-NJ).
It would require EPA to initiate at least 10 risk evaluations of existing chemicals each
fiscal year and relaxes the hurdles EPA must overcome to issue risk management measures under
section 6. For example, the draft deletes the requirement that EPA hold hearings on proposed
risk management measures and removes the constraint that EPA adopt the least burdensome
requirements. In addition, it sets clear deadlines for EPA to complete risk evaluations and
promulgate risk management measures. The draft allows states to regulate chemicals until EPA
has determined that a substance meets the safety standard or enacts risk management measures.
The draft does not amend the current TSCA safety standard. Nor does it establish a
prioritization scheme, except with respect to persistent, bioaccumulative and toxic (PBT)
chemicals. Under a newly added provision, the Agency must designate PBT chemicals of
concern and issue risk management measures for such chemicals on a fast track basis.
Risk management measures must be cost-effective and allow for a reasonable transition
period for compliance. Another noteworthy change is that the bill passed by the Subcommittee
no longer contains any provisions that would change current section 8 recordkeeping and
reporting requirements of TSCA.
The bill would leave it to the agency’s discretion to set fees “sufficient and not more than
reasonably necessary” for reviewing data submitted under sections 4 and 5, so long as EPA has
reduced fee provisions for small businesses. An amendment added during the mark up stipulates
fees collected under sections 4 and 5 need to be spent on the purpose for which they are intended
(i.e., carrying out section 4 and 5 data reviews).
With respect to confidential business information (CBI), the draft requires up-front
substantiation and renewal after 10 years of CBI claims made after enactment. Disclosure of
CBI to officials and health care professionals is permitted to assist with managing an
environmental release or the diagnosis or treatment of an individual, but EPA is not authorized to
share information more broadly with state or international agencies. Contrary to EPA’s efforts
over the last few years to scale back protection of chemical identities in section 8(e) significant
risk reports, the bill explicitly protects confidential formulas, including molecular structures, of
chemicals and mixtures contained in health and safety studies.
A new provision was added to the bill that prevents the agency from considering “costs
or other non-risk factors when deciding whether to initiate a rulemaking” under section 6.
However, it is not clear how this could be implemented in practice, when the draft requires EPA
to consider the reasonably ascertainably economic consequences of a section 6 rule and
promulgate cost-effective risk management measures. Finally, the draft requires EPA to adopt
implementation measures within 2 years of enactment and review and, if necessary, revise these
measures every five years. The bill will now advance to the full House Committee on Energy
and Commerce for consideration.
At the May 14th markup, Representative Bill Johnson (R-OH) expressed interest in
adding language that would ease the regulatory burden on companies that want to recycle metalrich byproducts instead of landfilling these process streams. Others also indicated a desire to
work on revisions to section 8’s chemical data reporting and Inventory update provisions.
For more information on the House draft or any other TSCA reform initiatives, please
contact Martha Marrapese ((202) 434-4123; marrapese@khlaw.com) or Adrienne Timmel ((202)
434-4164; timmel@khlaw.com).