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 metal-rich 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 Thomas C. Berger ((317)805-4770; berger@khlaw.com).