House Subcommittee Holds Hearing on Draft TSCA Reform Legislation

by Bergeson & Campbell, P.C.
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On March 12, 2014, the House Energy and Commerce Subcommittee on Environment and the Economy held a hearing focused on the discussion draft of the Chemicals in Commerce Act (CICA). On February 27, 2014, Representative John Shimkus (R-IL), Chair of the Subcommittee, released a much anticipated discussion draft that would update the Toxic Substances Control Act (TSCA). The March 12 hearing was intended to provide the Subcommittee an opportunity to review the provisions of CICA. An analysis of the draft legislation is available in our March 3, 2014, memorandum. The background memorandum and a webcast of the hearing are available online.

Shimkus began the hearing by noting that work on the discussion draft of CICA is just that -- a discussion draft -- and that discussions are continuing. Shimkus described making laws as a dynamic process that requires collaboration and diverse input and that he saw the discussion draft status and the hearing as providing an opportunity to further this process. According to Shimkus, the language in the discussion draft is likely to change as Congress works to reach consensus. Representative Paul Tonko (D-NY), Ranking Member, stated that he wants to work with Shimkus and other members of the Committee. While he understands that staff members have had some good opening discussions, the discussion draft does not yet meet the needs of all stakeholders. Representative Henry Waxman (D-CA), Committee Ranking Member, stated that letters opposing the discussion draft "have poured in." According to Waxman, if CICA were enacted, it would weaken the current law and endanger public health. Waxman would like to work with Shimkus and Representative Fred Upton (R-MI), Committee Chair. Waxman concluded his remarks by commenting that while House Democrats cannot pass a bill without Republican support, he believes House Republicans cannot enact a law without Democratic support.

Oral and Written Testimony

The Subcommittee heard from the following witnesses, whose statements are available online:

Panel 1

  • Dr. Carolyn Duran, Director, Chemical Risk and Compliance, Global Sourcing and Procurement, Intel Corporation;

  • Ms. Connie DeFord, Director of Product Sustainability & Compliance, Dow Chemical Company;

  • Mr. Barry Cik, Founder, Naturepedic, on behalf of Companies for Safer Chemicals;

  • Mr. Roger Harris, President, Producers Chemical, on behalf of the National Chemical Distributors Association;

  • Mr. Michael Belliveau, Executive Director, Environmental Health Strategy Center; and

  • Ms. Jennifer Thomas, Director, Federal Government Affairs, Alliance of Automobile Manufacturers.

Panel 2

  • Mr. Mark Duvall, Principal, Beveridge & Diamond, PC;

  • Dr. Beth Bosley, President, Boron Specialties, LLC, on behalf of the Society of Chemical Manufacturers and Affiliates;

  • Mr. James Stem, National Legislative Director-Transportation Division, Sheet Metal, Air, Rail, and Transportation Union;

  • Dr. Phillip J. Landrigan, Dean for Global Health, Ethel H. Wise Professor and Chairman, Professor of Pediatrics, Director, Children's Environmental Health Care Center, Ichann School of Medicine at Mount Sinai; and

  • Ms. Anna Fendley, MPH, United Steelworkers.

Duran offered specific comments on the discussion draft in two areas: managing the transition to alternative chemicals and treatment of articles. Duran recommended an approach that, where the U.S. Environmental Protection Agency (EPA) identifies a chemical with an unreasonable risk of harm, downstream users have the opportunity to develop an alternative that is demonstrably safer than the existing chemical and that EPA provide a reasonable transition timeline for implementation. Duran cited the semiconductor industry's experience in developing alternatives to the perfluorinated chemical PFOS as providing a useful model. Duran suggested that, while the transition occurs, EPA could adopt appropriate restrictions to reduce exposure and otherwise mitigate risk. Regarding articles, Duran stated that EPA should take into account the nature of a chemical's exposure in a finished product, where, if there is minimal release there should not be a problem.

DeFord testified that TSCA reform should: (1) ensure that existing chemicals as well as new chemicals meet the safety standard; (2) ensure objectivity in EPA's evaluation of safety using the best available scientific information; (3) allow EPA to take actions that are both timely and effective; (4) provide incentives for innovation in sustainable chemistry; and (5) enhance the competitiveness of U.S. companies. DeFord stated that the discussion draft represents a step forward. Cik testified that EPA should have the authority to remove chemicals without being hindered by the unreasonable risk standard. According to Cik, TSCA reform should include deadlines and minimum requirements for identifying, assessing, and regulating high priority chemicals.

Harris described "positive aspects" of the discussion draft concerning preemption, confidential business information (CBI), deadlines, prioritization, testing, and reporting. He recommended that provisions regarding testing be clarified so that, if EPA were to require testing of a mixture, EPA explain why testing "only the chemicals comprising the mixture" rather than "the mixture itself" is either infeasible or provides insufficient information. He also suggested that the language regarding reporting be clarified so that it explicitly states EPA should minimize any duplicative reporting requirements. Harris stated that while downstream formulators would have use-related information, distributors would not, and encouraged that the best information would be obtained by getting it from such downstream formulators.

Belliveau testified that the discussion draft, like the Chemical Safety Improvement Act (S. 1009) in the Senate, would endanger public health and the environment. According to Belliveau, CICA would roll back existing TSCA authority on new chemicals, chemicals in products, and testing of chemicals. Belliveau criticized CICA for not protecting vulnerable populations and preempting states' rights to regulate product safety. Belliveau suggested that a fresh start, based on previous stakeholder dialog, would be beneficial.

Thomas described the discussion draft as a good place to begin TSCA reform. Thomas stated that the approach taken in CICA regarding state preemption is more in line with manufacturing realities. According to Thomas, the approach towards regulating chemicals in articles is consistent with existing EPA policy, and would allow EPA to regulate chemicals in articles only if the risk cannot be addressed by placing restrictions on the chemical substance itself. Thomas urged an exemption for automotive replacement parts from any TSCA requirements. Thomas testified that such an exemption would avoid unnecessary disruptions to the supply of hundreds of thousands of replacement parts.

Duvall testified that the discussion draft would improve EPA's ability to require testing by lowering the threshold findings necessary to require testing and allowing EPA to require testing by order rather than rule. According to Duvall, the prioritization provision of CICA would be one of the most important changes as it would direct EPA to establish a risk-based process that designated chemicals as high or low priority. He also pointed to the way that CICA separated the safety determination step from the risk management step and that such separation was an improvement over TSCA. Duvall stated that, under CICA, the safety determination would be based on scientific factors and considerations of risk, with no provision to consider the costs and benefits. He also believed that CICA offered an approach to risk management that avoided the "least burdensome" requirement in TSCA while requiring that EPA make findings that are not unlike those in several Executive Orders issued by Presidents from Clinton to Obama.

Bosley described CICA as a clear improvement over the status quo. Bosley testified that a robust new chemicals program is important to innovation. She praised the discussion draft for retaining the current exemptions from premanufacture notification requirements. Stem stated that the discussion draft would fix significant issues under TSCA by requiring EPA to evaluate all chemicals in commerce, both existing and new, and designate them as high or low priority. Stem stated that significant issues remain, such as state preemption, the protection of vulnerable populations, and the protection of CBI without hindering EPA from fulfilling its mission.

Landrigan focused his testimony on the intersection between chemical safety legislation and children's health. He criticized TSCA's "unreasonable risk" standard and "least burdensome" approach. Landrigan stated that TSCA reform must include a requirement that existing chemicals be evaluated for potential toxicity and that all new chemicals be assessed for potential toxicity before entering the market.

According to Fendley, the discussion draft would merely amend rather than reform TSCA, and is a step backward. Fendley testified that CICA would retain the problematic "unreasonable risk" standard because it fails to define a safety standard specifying the use of health-only considerations. She stated that the prioritization scheme would result in chemicals falling through the cracks and that companies should be required to provide the necessary data for EPA to evaluate the safety of new chemicals before they are allowed on the market. Fendley also criticized the provision concerning state preemption and the lack of protection for vulnerable populations.

Question and Answer Session

The Subcommittee members joined in active questioning of the witnesses seeking to bolster the members' respective views but also helping to shed some light on various aspects. Shimkus noted to Duran his appreciation for a "tailored approach" to articles and Duran agreed saying that regulation should be in line with exposure. Waxman asked several witnesses on the first panel to identify any current state laws that should be preempted by CICA and none were identified. Shimkus offered an explanation as to why preemption was an issue of keen interest to the Energy and Commerce Committee, citing the interstate commerce clause in the Constitution. Duvall picked up on Waxman's point in the second panel and offered a more nuanced reading of CICA's preemption provision and seemed to offer the view that it did not have an effect of preempting state laws as such.

Several witnesses and Representatives identified concern with CICA's approach to testing, which they believed precluded testing for prioritization purposes. DeFord offered a useful clarification when she reminded everyone that the draft allowed lack of information on a chemical to be a basis for a high priority call and that this would allow for testing to better inform prioritization.

Several Representatives posed questions about CICA's approach to new chemicals. Industry witnesses were favorable to the approach while other witnesses said the approach was weaker than current TSCA with some advocating that at least minimum data should be required on all new chemicals.

Several Representatives probed the question of whether CICA had avoided the "least burdensome" requirement in TSCA Section 6 and perhaps not unexpectedly witnesses disagreed as to whether CICA was an improvement over TSCA in this regard.

Several of the witnesses in their testimony and in response to questions highlighted the need for EPA to have adequate resources. Shimkus asked the first panel if they supported "reasonable fees" on industry and all agreed, while emphasizing that they be reasonable.

Next Steps

Shimkus stated that he intends to hold another hearing on the discussion draft, which might include a revised bill. He encouraged all stakeholders to work with the Subcommittee.

Commentary

The hearing provided a good opportunity for an exchange of views on CICA although it is clear there is still a long way to go to bridge the various positions advocated. Seemingly, the approach of putting the proposal forward as a discussion draft was appreciated and recognized by the Subcommittee members as one that would allow for discussions to be pursued with several indicating that they thought that a way could be found to resolve the different views. Shimkus suggested that the next hearing could involve an "adjusted draft" based on the input received and the continuing discussions to offer an optimistic closing to the hearing.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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