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September 19, 2013

House Subcommittee Convenes Hearing on Role of TSCA Preemption

Bergeson & Campbell, P.C.

On September 18, 2013, the House Energy and Commerce Subcommittee on Environment and the Economy convened a hearing on the “Regulation of Existing Chemicals and the Role of Pre-Emption under Sections 6 and 18 of the Toxic Substances Control Act.” This was the Subcommittee’s third hearing on Toxic Substances Control Act (TSCA) issues, and was intended to focus “on the existing statutory provisions, regulatory implementation, and ‘real world’ implications of TSCA section 6 requirements related to the manufacture and processing of existing chemicals; and TSCA section 18, regarding Federal preemption of State law.” The Subcommittee’s background memorandum and an archived webcast of the September 18, 2013, hearing are available online. Bergeson & Campbell, P.C.’s memorandum on the Subcommittee’s June 13, 2013, hearing to provide an overview of Title I of TSCA is available online. Our memorandum on the Subcommittee’s July 11, 2013, hearing to examine TSCA Sections 5 and 14, which address the regulation of new chemicals, new uses of existing chemicals, and the protection of confidential business information (CBI), is available online.

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

  • Mark A. Greenwood, Principal, Greenwood Environmental Counsel PLLC;
  • William K. Rawson, Partner and Chair, Chemical Regulation, Product Strategy & Defense Practice, Latham & Watkins, LLP;
  • Jennifer Thomas, Director, Federal Government Affairs, Alliance of Automobile Manufacturers;
  • Justin Johnson, Deputy Secretary, Vermont Agency for Natural Resources, on behalf of the Environmental Council of the States (ECOS);
  • Lemuel M. Srolovic, Chief, Environmental Protection Bureau, New York State Office of the Attorney General; and
  • Linda Reinstein, President/CEO and Co-Founder, Asbestos Disease Awareness Organization.

In his opening statement, Subcommittee Chair John Shimkus (R-IL) referred to testimony given by Charlie Auer at the Subcommittee’s June 13, 2013, hearing. Shimkus noted that Auer “stated that TSCA section 6 ‘had surprising early success in efforts between 1978 and 1980.'” Shimkus stated that, during the third hearing, the Subcommittee would examine what TSCA Section 6 asks of EPA, including the concepts of “unreasonable risk” and “least burdensome” regulations. The Subcommittee would also study the role of risk assessment and cost-benefit analysis, and review Section 6 and its link to the preemption provisions in TSCA Section 18. Shimkus closed by noting that there is “kind of an excitement about trying to address a 30-year-old law that we haven’t really revisited in many years. . . I think it’s an exciting time and really reinforces the need to at least have these hearings, become more educated, learn from [the witnesses], and see if we can move to bring a very old law kind of up to date.” He reiterated the point during the question and answer segment.

Greenwood, who served with the U.S. Environmental Protection Agency (EPA) as Associate General Counsel for Pesticides and Toxic Substances and then as Director of the Office of Pollution Prevention and Toxics, focused his testimony on three general issues: the unreasonable risk standard; least burdensome alternative; and the procedural aspects of Section 6. According to Greenwood, the unreasonable risk standard is not unique to TSCA, and most laws regulating products in commerce include a similar standard. Greenwood stated that one important question is whether the Section 6 standard “should be changed to direct the Executive Branch to suspend its long-standing policies favoring cost-benefit analysis when EPA regulates existing chemicals.” Concerning the least burdensome alternative, Greenwood stated that agencies “routinely examine options that can achieve health and environmental objectives through measures that minimize social and economic disruption.” Greenwood testified about the effect of the 1991 decision by the U.S. Court of Appeals for the Fifth Circuit in Corrosion Proof Fittings, which vacated the primary sections of EPA’s asbestos rule. Greenwood stated that the court “interpreted the ‘least burdensome alternative’ obligation in Section 6 to require EPA to assess each option potentially available that is less burdensome than the option that the Agency intends to pursue.” According to Greenwood, this interpretation “had the most significant chilling effect” on EPA’s willingness to use its Section 6 authority. Greenwood suggested the Subcommittee consider “how to set a reasonable expectation that EPA should find effective regulatory strategies that minimize economic and social disruption, while at the same time not imposing an overwhelming analytical burden that would stall necessary action.”

Rawson urged the Subcommittee to take a close look at the Corrosion Proof Fittings decision. According to Rawson, the court’s decision was prompted by procedural and substantive errors made by EPA in its rulemaking under Section 6. Rawson testified that EPA promulgated several Section 6 rules, on a smaller scale, before the asbestos rule. Rawson stated the number of rules issued under Section 6 is not the correct metric for evaluating TSCA because it does not account for the assessments where EPA determined no action was necessary. Rawson expressed his concern regarding EPA’s backlog of assessments of existing chemicals, and suggested that a mandate be given to direct EPA to prioritize and complete safety assessments of chemicals in commerce. During the question and answer portion of the hearing, Rawson suggested the Subcommittee consider how to address preemption when EPA has completed its assessment of a chemical and determined that no restrictions or ban are necessary.

Thomas testified that the automobile manufacturers need one national program for chemical regulation. According to Thomas, the average automobile has 30,000 unique components, which are often obtained as finished products and are comprised of multiple chemicals and mixtures. Thomas noted that state programs have begun targeting not just specific chemicals but also articles, and urged the Subcommittee to consider establishing clear standards for the regulation of articles under TSCA and supporting the continued use of existing article exemptions in most circumstances.

Johnson stated that ECOS passed a September 17, 2013, resolution expressing its continuing support for revising TSCA. According to Johnson, the top four issues for ECOS members are preemption; the need for EPA to conduct more chemical assessments; the safety standard burden of proof should be less onerous; and states should have access to CBI. Johnson testified that states see the ability to regulate chemicals as a backstop to federal programs. Johnson stated that states need access to CBI to fulfill their mission to protect human health and the environment. Johnson noted that states understand they would have to follow federal guidelines to protect CBI. The ECOS resolution concerning TSCA reform is available online.

Srolovic urged the Subcommittee to preserve the ability of states to protect its citizens. Srolovic suggested that this could be achieved by allowing state restrictions to remain in place until EPA has imposed a restriction, and, in some circumstances, allowing a state restriction to remain in effect even after EPA has imposed a restriction. Reinstein testified about EPA’s failure to regulate asbestos and the dangers it poses to human health and the environment.

The question and answer session focused in large part on TSCA Section 6 and in particular the meaning of the Corrosion Proof Fittings decision. Greenwood and Rawson essentially agreed to disagree with Greenwood making the point that EPA’s “consensus” view at the time was that the court’s interpretation of the “least burdensome” requirement was especially problematic to future use of Section 6, while Rawson believed that deficiencies in EPA rulemaking were the real problem. Beyond this, several of the witnesses identified the need for a more effective means for EPA to prioritize its work and to complete assessments. There was some discussion of preemption but it seemed less pointed and adversarial than was the case in the earlier House hearings or in the Senate’s July hearing on the Chemical Safety Improvement Act.


The hearing while of interest to TSCA aficionados did not produce new information or insights on the thorny issue of preemption. Johnson offered an interesting perspective when he noted that states were generally “not confident in TSCA,” and that this stands in contrast to their view on the other federal health and safety laws, and that this lack of confidence explains some of the state activity.

Perhaps the most interesting aspect of the hearing was Representative Shimkus’ expression (in both his opening statement and extemporaneously during the question and answer session) of “excitement” about dealing with a 30-year old law to “see if we can move to bring a very old law up to date.” This is the most positive statement of interest to date by a Republican member in the House, although it may be notable that the point was neither picked up nor reiterated by other majority members.

To date, TSCA reform legislation has been introduced only in the Senate, not in the House. On April 10, 2013, the late Senator Frank R. Lautenberg (D-NJ) reintroduced the Safe Chemicals Act of 2013 (S. 696). More information regarding the Safe Chemicals Act is available in our April 29, 2013, memorandum, which is available online. Several weeks later, on May 22, 2013, Lautenberg and Senator David Vitter (R-LA) introduced the Chemical Safety Improvement Act (S. 1009). More information regarding the Chemical Safety Improvement Act is available in our May 29, 2013, memorandum, which is available online. During the July 31, 2013, hearing by the Senate Committee on Environment and Public Works on “Strengthening Public Health Protections by Addressing Toxic Chemical Threats,” much of the testimony focused on whether the Chemical Safety Improvement Act would preempt existing state laws. Our August 1, 2013, memorandum on the Senate hearing is available online.