Regulatory Developments

TSCA Reform:  House Committee Passes Amended TSCA Modernization Act

June 3, 2015

On June 2-3, 2015, the House Committee on Energy and Commerce held a markup hearing on the TSCA Modernization Act of 2015 (H.R. 2576). Representative John Shimkus (R-IL), Chair of the House Energy and Commerce Subcommittee on Environment and the Economy, formally introduced the bill on May 26, 2015. On June 2, 2015, the Committee heard opening statements only. Energy and Commerce Committee Vice Chair Marsha Blackburn (R-TN) made the first statement, noting the broad bipartisan support for the bill, "the product of a multi-year, multi-Congress effort." Representative Frank Pallone (D-NJ), Ranking Member of the Committee, thanked Shimkus and Committee Chair Fred Upton (R-MI) for working with Democrats on a "strong compromise" bill to reform the Toxic Substances Control Act (TSCA). Pallone noted that the bill will remove many major obstacles that the U.S. Environmental Protection Agency (EPA) has faced in implementing TSCA, including the least burdensome test, the cost-benefit standard for risk management, and limitations on testing authority. While Pallone still hopes to reach his goal of ensuring that all chemicals in U.S. commerce are subject to minimum testing and systemically reviewed for safety, he stated that Congress must face practical realities and make progress where possible. Pallone stated that the current bill includes language acknowledging that EPA will not have unlimited capacity to respond to industry requests for risk evaluations, particularly in the early years of the program. Pallone expects that the issue will be further clarified in report language.

Shimkus described the bill as a "breakthrough" in regulatory reform, keeping the best of TSCA while retooling provisions that were not working so well. According to Shimkus, the biggest change may be how EPA regulates existing chemicals. EPA will take a two-step approach: (1) EPA will decide, based on science, whether a chemical poses an unreasonable risk under its conditions of use; and (2) EPA will decide how to manage such a risk. Shimkus noted that in drafting the preemption section of the bill, Members were careful to ensure that ordinary tort actions are saved unless they actually conflict with what EPA is trying to do with TSCA.

Representative Paul Tonko (D-NY), Ranking Member of the Subcommittee, stated that while the TSCA reform bill is not a perfect bill, it is a good bill. According to Tonko, EPA has identified several issues in the bill that deserve serious consideration. He failed to describe the issues, however. Tonko noted that state preemption has been a "particularly thorny" issue, and that he received a letter from a coalition of State Attorneys General on the discussion draft of the bill. By his reading of their letter, there are still a few items to work through, but their letter also compliments Congress's efforts and acknowledges some important features of the bill.

Representative Jan Schakowsky (D-IL) stated that after lots of negotiation and work, the Committee has a fair bill. Schakowsky still has some concerns, including the bill's failure to provide additional resources to help EPA. Schakowsky hopes and expects that those concerns will be addressed in negotiations between the House and Senate. Blackburn closed the hearing, reminding Members that the Chair would give priority recognition to bipartisan amendments.

On June 3, 2015, the Committee hearing reconvened. Shimkus offered a technical and conforming amendment that he stated had been agreed upon by majority and minority staff and with some input from EPA. The amendment passed on a voice vote. Representative Anna G. Eshoo (D-CA) offered the only other amendment, which concerned state preemption. According to Eshoo, her amendment would make two "minor" changes to the savings provision, based on the recommendations of 12 State Attorneys General. The amendment would clarify the bill so that preemption occurs only when it is impossible to comply with both state and federal laws. Eshoo offered as an example if an existing state law sets a limit for a chemical at one percent, and EPA sets a limit of five percent, under her amendment, the state law would not be preempted because it is possible to comply with both standards. Her amendment would also clarify that the bill allows states to continue to enforce existing state laws unless preempted under the limited circumstances she described.

Pallone stated that he wanted to move the bill forward and not have a vote on Eshoo's amendment. According to Pallone, state preemption needs to be addressed, and although he did not support a vote on it today, he stressed how important the issue is to move the bill forward. Shimkus cautioned Eshoo to be careful about "pushing." Shimkus stated that the savings clause of the bill was drafted with a focus on making sure they were receptive to California's concerns, but that her amendment pushes it over the limit on the Republican side. He looks forward to having further discussions on the issue, however. Upton stated that drafting a compromise bill has not been quite as hard as balancing basketballs on each other. He acknowledged that preemption is a "huge" issue. According to Upton, while the Senate bill is fairly close to where the House bill is, although the bills have different language, as he understands it, the House bill is better from the California perspective. Upton expects the bill to be on the House floor before the end of June 2015, and he is not sure they can negotiate something different. He is open to having that discussion, however. Pallone responded that they have done a good job so far of addressing issues as they arise. State preemption came up in the last few days and, according to Pallone, needs to be addressed. Pallone asked for a commitment over the new few days or weeks to address it in some fashion. Upton stated that they would try to address it, although he is not sure if they can come up with something in the next two weeks or so.

Representative Diana DeGette (D-CO) stated that this same issue came up before the Subcommittee markup, and they were able to negotiate some language then. She suggested that if they sat down with the State Attorneys General, trial lawyers, and Committee Members, it would be worth looking at it again. Upton responded that he would be glad to set up meetings and see if they can come up with something before it comes to the floor. Eshoo stated that her intent was not to "blow up" the bill. She thinks the bill has gone a long way to improving the "broken" regulation of toxic chemicals. Her goal is to assure states that they can implement the laws they have, and she does not think the bill has far to go. She noted that there are large delegations with a lot of votes, such as California and New York, and thinks they need to be taken into consideration. Eshoo withdrew her amendment with the understanding that, as Pallone requested, there be a commitment to address it. Upton stated that he would continue to listen, even after the bill is scheduled for a floor vote, and that they will continue to work with all sides.

Committee Members addressed a few other issues. DeGette expressed concern that, under the bill, industry driven assessments could result in EPA spending too much time on industry priorities while ignoring high-priority chemicals. According to DeGette, EPA's testing authority remains unclear, with EPA unable to require testing without evidence of risk. Representative Yvette D. Clarke (D-NY) expressed her support for the bipartisan bill, but stated that the bill does not adequately address future issues of disposal of toxic chemicals and that the EPA Administrator is not specifically directed to refer to more stringent environmental protections mandated under the Resource Conservation and Recovery Act (RCRA). Representative Kurt Schrader (D-OR) expressed concern regarding the treatment of recycled byproducts, stating that it is important to have a regulatory environment that prioritizes recycling. Schrader did not offer an amendment, but asked that the dialog on the issue continue and that there be "some strong reporting language" along these lines. Representative Bill Johnson (R-OH) stated that he supports including strong language in the Committee report for EPA to address this issue. In addition, Johnson would like to see language that addresses EPA's partial reporting exemption process for low interest chemicals. Shimkus responded to Schrader and Johnson, stating that they will work on strong report language to address their issues.

The Committee passed the bill, as amended, by a roll call vote. There were 47 votes in favor, and Eshoo abstained.

Commentary

The fact that the House seems poised to act on significant TSCA reform before the Senate does is surprising and encouraging. At the same time, the prospects for enactment remain unclear since the Senate has been relatively silent in the past few months (though importantly adding more bipartisan sponsors), and there remains some noticeable animosity between interested parties. Perhaps what will be most significant from this point forward is whether any House floor action will cause some specific reaction from the Administration to formulate an official position on the pending bill, which could help engage EPA staff on a not insignificant number of pivotal issues that we view as critical for the eventual success or failure of an effective chemical regulatory program.

It seems certain that there will remain important differences between the House and Senate proposals, and that would require a formal conference committee process to work out differences or a more informal convening of interests to come to an agreement. As reported in the trade press, continued efforts to resolve issues and refine other "improvements" will be contained in a "(floor) manager's amendment" by Shimkus. As days pass, however, the window of opportunity is more rapidly closing since the opportunity for successful legislation is likely to end when 2016 election year politics dominate Congressional activity.

At this point, the impending House floor action is a pleasant surprise, and one that helps us remain optimistic about the prospects for ultimate success.

Links to Additional Resources

On April 7, 2015, Shimkus released a discussion draft of the TSCA Modernization Act of 2015 (TMA1 DD). More information regarding the TMA1 DD is available in our April 9, 2015, memorandum, Shimkus Releases Discussion Draft of TSCA Reform Legislation. The House Energy and Commerce Subcommittee on Environment and the Economy held a hearing on the TMA1 DD on April 14, 2015. More information regarding the April 14, 2015, hearing is available in our April 14, 2015, memorandum, House Subcommittee Holds Hearing on TSCA Modernization Act. On May 14, 2015, the Subcommittee on Environment and the Economy held a markup of a revised discussion draft of the TSCA Modernization Act (TMA2 DD), prepared by Shimkus and released on May 12, 2015. Tonko offered an amendment that would make several technical changes that had been worked out with Republicans before the hearing. Under the amendment, state preemption would not include preemption for state tort laws. The Subcommittee passed the amendment by a voice vote. The Subcommittee then unanimously passed the amended revised discussion draft by a roll call vote. More information regarding the May 14, 2015, Subcommittee markup is available in our May 14, 2015, memorandum, House Subcommittee Holds Markup of Revised Draft TSCA Bill and Passes Amended Draft. More information regarding TMA2 DD is available in our May 20, 2015, memorandum, Detailed Review of Representative Shimkus' Second Discussion Draft of TSCA Reform Legislation.


 
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