House Subcommittee Holds Hearing on Draft TSCA Reform Legislation

by Bergeson & Campbell, P.C.

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.


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.

© Bergeson & Campbell, P.C. | Attorney Advertising

Written by:

Bergeson & Campbell, P.C.

Bergeson & Campbell, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.