TSCA Reform a Viable Contender For Serious Legislative Attention Next Year

Bergeson & Campbell, P.C.

A transcript of my remarks regarding 2015 legislative expectations regarding environmental laws, made at the Chemical Watch Regulatory Summit in Washington, D.C., December 3, 2014

I have been asked to say a few words about 2015 legislative expectations regarding environmental laws, particularly and most likely with respect to reform of the Toxic Substances Control Act (TSCA). In my view, TSCA reform is the only viable contender for serious legislative attention next year, and even this is by no means a given.

Consideration in earnest is dependent upon a variety of factors, the most important of which is the critical need for bipartisanship. The September 2014 Udall/Vitter recasting of the Chemical Safety Improvement Act (CSIA), first introduced by Senators Lautenberg and Vitter in May 2013 and co-sponsored by 25 Senators (13 Republicans and 12 Democrats), is an underestimated starting point for discussion. Before going into the merits of CSIA and Senator Barbara Boxer’s alternative TSCA reform bill, I offer thoughts on the context in which TSCA reform legislation will be considered.

With the Republican take-over of Congress, some believe, including me, that the Republican Senate Environment and Public Works Committee (EPW) leadership’s support for TSCA reform is central to the success of any TSCA reform measure. Senator Boxer has been a major impediment to TSCA reform measures given her views on preemption. Senator Boxer will step aside and make way for Senator Jim Inhofe, who will take over as Chair of the EPW Committee. Senator Inhofe has long supported TSCA modernization, co-sponsored CSIA, and has renewed his support for TSCA reform.

The House Subcommittee on Environment and Energy Chair Representative John Shimkus has been a real leader on TSCA reform. Representative Shimkus introduced in March the Chemicals in Commerce Act, and has devoted considerable time to TSCA reform by educating members on TSCA by convening a number of hearings over the past few years on TSCA and how it works or does not. Assuming both chambers get a bill out, and assuming continued bipartisan support for Udall/Vitter CSIA does not dissipate, there is at least a theoretical chance something could happen next year. If there ever was a time when it was true that “there is no small amendment,” it is now. With the recent TSCA reform draft, virtually all sections of TSCA have been significantly revised, and there are many issues where opposing viewpoints could sink the bill even if the new Congress is feeling any degree of bipartisan love.

I would like to review key provisions in Udall/Vitter, and then consider Senator Boxer’s markup on the Udall/Vitter bill.

Safety Standard -- Udall/Vitter retains the TSCA safety standard of unreasonable risk of injury. Senator Boxer’s bill replaces it with a requirement that the U.S. Environmental Protection Agency (EPA) ensure “with reasonable certainty that no harm to human health or the environment will result from chemical exposures, without taking into consideration cost or non-risk factors.” The debate over “uncertainty of no harm” comes from the standard in the Food Quality Protection Act which now is the Holy Grail for some in the non-governmental organization (NGO) community.

High Priority Substances -- Udall/Vitter requires that EPA identify an initial list of ten high priority substances for safety assessments and determinations within six months of enactment. Senator Boxer would make the number 15. Some articulation of expected workload is probably a good thing to guide the Agency, especially if it is not clear if EPA will receive any significant increase in resources to implement any new provisions.

Inclusion of Deadlines -- Udall/Vitter contains what many regard as aggressive but achievable deadlines for establishing policies, procedures, guidance documents, and completing actions. Deadlines help drive priorities, but too many or simply unrealistic ones can foster inflated expectations doomed to disappoint. Senator Boxer’s bill similarly emphasizes deadlines and productivity.

Explicit Identification of Final Agency Actions -- Udall/Vitter makes clear what is final agency action and subject to judicial review. This has not been the case in earlier drafts, leading to some suspicions and controversies.

Fee Structure -- Senator Boxer’s version adds a fee structure to fund Agency actions, assessed on manufacturers’ production or import volumes. Resources will be sorely needed, but the Republican Congress may not allow “taxes” by any other name. This could put EPA between a rock and a hard place.

Preemption -- The important issue of preemption is unresolved. Senator Boxer’s version strikes the Udall/Vitter language, which is similar to the current TSCA language, and basically eliminates TSCA’s preemptive effect.

Many believe CSIA recast as Udall/Vitter will be re-introduced in the New Congress. With Senator Inhofe at the helm in the Senate, Senator Boxer has been eliminated as an absolute block to consideration of CSIA. While Senator Boxer will remain an influential ranking member of the Committee, and can be expected to oppose any bill that preempts state chemical laws or otherwise does not address her concerns, Senator Boxer’s influence has been significantly blunted. The key is whether there are enough Democrats supporting any bill to meet the now functionally required 60 votes to get anything done in the Senate.

The American Chemistry Council supports Udall/Vitter, as do other chemical trade associations. Cal Dooley noted that a Republican-led Congress would provide a “more favorable policy environment” for TSCA reform and that he speculated TSCA reform legislation would be viewed favorable in the new Congress -- perhaps Mike Walls echoed those views yesterday. It would appear then that provided TSCA reform legislation is considered early in the New Year, it has a fighting chance of success. All bets are likely off, however, if something fails to materialize before the August recess. Presidential election considerations can be expected by September to influence the legislative calendar and serious consideration of meaningful legislation, including TSCA reform, could halt.

On top of Presidential calendar considerations, another unknown is how exactly the two parties will get along -- will the new Congress see any spirit of bipartisanship, bitter feelings about the “imperial Presidency” among the Tea Party types, or generally do they actually want to get something done? The recent discussions on immigration reform do not bode well for collegial relations in Congress. Since the beginning of the Obama Administration, the key parties have stated they agree on a number of “principles” which upon review are, broadly speaking, directionally in agreement. Crunch time is right around the corner --there is a narrow but real opportunity for success and I for one hope it happens.

As for other major environmental issues, Senator Inhofe can be expected to push hard against the Administration’s climate change program, nominations will continue to stall, and EPA science will almost certainly be assailed under this Republican Congress.

EPA can be expected to remain in a holding pattern. As for EPA’s chemicals program, and as I am certain Jeff Morris discussed yesterday, the Office of Chemical Safety and Pollution Prevention (OCSPP) will continue its Work Plan Chemicals assessments; continue to improve Design for the Environment (DfE); continue to build ChemView; develop CompTox for endocrine disruptors and chemical categories for commercial chemicals; and in the pesticide world, continue the relentless pressure to complete timely pesticide registration reviews, Worker Protection Standard implementation, and Endangered Species Act (ESA) compliance checks.

2015 will be an interesting year. Let us hope for all our sakes, TSCA reform happens in 2015 and EPA continues to implement administrative changes designed to improve domestic chemical management.

Written by:

Bergeson & Campbell, P.C.

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