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July 26, 2012

Senate Committee Passes TSCA Reauthorization Legislation

The ACTA Group

In a largely symbolic vote along party lines, on July 25, 2012, the Senate Environment and Public Works Committee by a 10-8 vote passed an amended version of Senator Frank Lautenberg’s (D-NJ) Safe Chemicals Act of 2011 (S. 847). Despite the Committee’s passage of the bill, the legislation faces a headwind of opposition from Senate Republicans and the chemical industry and is unlikely to be passed this year. Republicans criticized the scheduled markup of the Safe Chemicals Act, particularly in light of Lautenberg’s earlier agreement to enter into bipartisan negotiations to create a “fresh legislation proposal” to reform the Toxic Substances Control Act (TSCA). Senator James Inhofe (R-OK), Ranking Member, entered a statement criticizing the Safe Chemicals Act as currently drafted. The amended bill is available online. An archived webcast of the Committee’s hearing and Inhofe’s statement are available online.

One of the pillars of the legislation is a revamped chemical evaluation process. This would be launched by an update of the TSCA Inventory of existing chemicals that supporters of the legislation believe will better refocus the U.S. Environmental Protection Agency’s (EPA) energy on priority chemicals. Once the Inventory is updated, EPA would assess chemicals on the updated Inventory over an extended period of time by creating batches of about 6,000 chemicals for review, each over a five-year period. Within each batch, EPA would identify chemicals that are either of very high concern (which would require expedited risk management) or very low concern (which would require no further action). EPA would also identify chemicals that require additional safety information and those that require a safety standard determination. For the latter category of chemicals requiring a safety standard determination, EPA would focus its resources first on the highest priority chemicals. Risk management, such as use restrictions or labeling, would be required where necessary to ensure a chemical meets the safety standard. If a chemical cannot meet the safety standard, only critical uses of that chemical would be allowed.

For new chemicals, the process would be similar to the process under the existing program. Manufacturers would submit a pre-manufacture notice (PMN), along with a set of basic information on the chemical. EPA would then perform an initial screening of the chemical based on that information set and other existing information. Chemicals of very low concern would be included on the active Inventory without further review. Chemicals likely to meet the safety standard would also be placed on the Inventory and await further evaluation in the next batch of chemicals. If a new chemical substance was found to be a substance of very high concern or unlikely to meet the safety standard, it would generally be prohibited from entering commerce except for critical uses.

The amended bill would also revise the type of information EPA would require. Specifically, the amendment would require new information and testing of chemicals only when necessary. Under the amendment, EPA relies first on existing information before requiring companies to submit new information to the Agency. The amendment directs EPA to rely on existing information first and require additional testing only to the extent necessary to determine safety. In addition, different tiers of minimum information sets are tailored to fit the different stages of evaluation. This is intended to minimize the data burden for regulated entities, while still providing EPA with the necessary information to make decisions.

Under the revised bill, EPA is vested with the authority to require use reporting every four years, similar to the current Chemical Data Reporting (CDR) rule requirements, for both manufacturers and processors. Information required in use reporting is limited to what is already available to companies.

Confidential business information (CBI) concerns are also addressed by the amendment, and Senator Lautenberg states that he believes this version of the bill better balances the protection of CBI while ensuring appropriate public disclosure. The bill assigns various types of information submitted to EPA into different categories. Information like trade secrets and precise production information is always eligible for CBI protection. Other types of information are eligible for CBI protection on a case-by-case basis, including the identity of chemicals, which can be protected for a specified period of time based on market conditions; and certain information is never eligible for CBI protection, including health and safety information, Agency decisions, and general market information.

During the Committee’s markup, there was little substantive discussion. Senator John Barrasso (R-WY) proposed an amendment to direct EPA to determine whether the benefit of restricting a chemical “outweighs the potential negative impacts of the restriction or prohibition on products and technologies that protect the health and safety of children and families.” Lautenberg criticized Barrasso’s amendment, stating it would “reinstate one of the fundamental flaws” of TSCA, which is that it would allow dangerous, “even perhaps deadly,” chemicals to remain on the market as long as the chemicals provide certain benefits. The Committee rejected Barrasso’s amendment. Senator Ben Cardin (D-MD) introduced two amendments, one that would require EPA to define the term “highly hazardous” and the other concerning the disclosure of CBI. Lautenberg stated that he would work with Cardin to address his concerns, and Cardin withdrew his amendments.

Republican Senators would like to resume bipartisan negotiations, but whether the negotiations would now use the amended Safe Chemicals Act as a starting point is unclear. The negotiations began in June 2012, but ended when Senator Barbara Boxer (D-CA), Chair of the Committee, scheduled the markup of the amended bill. TSCA reform legislation has not been introduced in the House during the current session of Congress.