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House Subcommittee Holds Hearing on TSCA Reform Bill (November 2013)

On November 13, 2013, the House Energy and Commerce Subcommittee on Environment and the Economy held a hearing regarding proposed reform to the Toxic Substances Control Act (TSCA). The hearing examined Senate Bill 1009, known as the Chemical Safety Improvement Act (CSIA), which aims to update the original TSCA law passed in 1976. The hearing included various representatives from the Senate, the Administration, industry associations, NGOs and academia that made statements regarding the currently proposed bipartisan CSIA legislation.

Testimony from witnesses highlighted the general consensus that TSCA reform is needed because the current law is outdated; however, there is debate as to whether the proposed CSIA bill will properly address the deficiencies in existing legislation. Some of the key issues include:

State Preemption: Restriction of States to Protect the Public
Section 18 of TSCA, as currently in effect, preserves all state authority to regulate chemical substances, mixtures and articles (except in limited identified circumstances). This gives states the authority to restrict and prohibit chemicals in a way that goes beyond federal regulation. Recently, states have used their authority to address risks from toxic chemicals, including Bisphenol A (BPA) and certain flame retardants.

Senate Bill 1009, as currently proposed, would remove the authority states presently have under TSCA. This means that states would be unable to go beyond federal regulation in restricting or banning the use of a chemical substance within the state; the bill would also prevent states from addressing risks posed by chemicals that have never undergone a safety assessment because EPA has labeled them “low priority.”

EPA Collection of Test Data
TSCA does not require companies to test chemicals before they are manufactured. It also requires EPA to exhibit that chemicals pose risk before it can ask for testing. Currently, approximately 85% of premanufacture notices (PMNs) submitted to EPA do not contain any toxicity data.

The proposed Senate Bill 1009 would not require new chemical applications to be submitted with data nor require testing of all existing chemicals. Instead, the bill would change the determination that EPA must make before requiring testing under section 4. There is debate about the need for “base set” testing for new chemicals or to make prioritization decisions.

Increased EPA Authority to Address and Regulate Dangerous Chemicals
There are several provisions in TSCA that pose challenges to EPA’s authority to regulate dangerous chemicals, including language that requires EPA to show “substantial evidence regarding unreasonable risk” and choose the “least burdensome” regulation to address dangerous chemicals.

Senate Bill 1009 maintains the “substantial evidence” standard for judicial review and also leaves in the “unreasonable risk” standard for EPA action. While Senate Bill 1009 does remove the language pertaining to the “least burdensome” requirement, the bill proposes to add a cost-benefit analyses requirement, which could be equally burdensome.

Other Issues Addressed

    ▲ Protecting vulnerable populations.

    ▲ Funding and resources for implementation of TSCA reform.

    ▲ Ability to share Confidential Business Information with states.

    ▲ Deadlines for Agency action.

    ▲ Innovation in the chemical industry.

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