Recently, the Senate passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697). This was a historic moment in U.S. environmental law. But a great deal of work remains to be done before the objective of the bill is complete. Most importantly, S. 697 must be reconciled with the TSCA Modernization Act of 2015 (H.R. 2576), which was passed by the House in June 2015.

It is difficult to find anyone involved in industry, government, or environmental advocacy who opposes reforming TSCA, and provisions in both bills take similar approaches to that reform. For example, both bills would remove the shackles that have made it virtually impossible for the EPA to take action against existing chemicals that endanger public health. Both bills would install a safety-only analysis in place of the onerous cost-benefit analysis the EPA must undertake before regulating a chemical in commerce. The bills would also require that the Agency give special attention in its assessments to the effects chemicals have on children and other vulnerable subpopulations. The existing TSCA has no provision requiring consideration of any chemical’s impact on the most vulnerable groups.

The differences between the bills can be found in areas such as which chemicals the EPA must review; how federal actions on a chemical will preempt the ability of states to also act on the chemical; when waivers may be applied to that federal preemption; the extent of EPA’s authority to order companies to conduct tests; and the manner in which companies request that the EPA conduct reviews of chemicals.

Preemption

Senate approval of S. 697 has been delayed mainly by disagreements over federal preemption of state rules.  In particular, Senator Barbara Boxer (D-CA), the ranking member of the Environment and Public Works Committee, has resisted provisions that would dilute the reach of California’s strong chemical safety laws and regulations.  Boxer eventually voted for S. 697, saying revisions to the bill addressed her concerns about preemption.  Under S. 607:

  • State chemical regulations enacted before January 1, 2015, would be grandfathered in.
  • States would be able to act to restrict a chemical until and unless the EPA takes up that same chemical and addresses the same uses.
  • State actions that do not restrict a chemical or are taken to address a different problem would not be affected.
  • During the safety assessment and after a final rule, states would have access to a waiver process to set different regulations than the EPA.
  • However, once the EPA acts on a chemical substance, a uniform federal standard would be applied across the nation to create more regulatory certainty and equally protect citizens across the country.

Cost considerations eliminated

Other provisions of S. 697 would:

  • Mandate that the EPA base chemical safety decisions solely on considerations of risk to public health and the environment. The legislation makes clear that costs and benefits may not factor into a chemical safety evaluation.
  • Eliminate TSCA’s “least burdensome” requirement for regulating a chemical, which prevented the EPA from banning asbestos.
  • Mandate safety reviews for new and existing chemicals.
  • Require that all chemicals in commerce, including those grandfathered in under TSCA, undergo safety reviews.
  • Require a safety finding for new chemicals before they can enter the market.
  • Place greater emphasis on and require protection of those who may be more exposed or particularly vulnerable to the effects of exposure to chemicals, and clearly define them for the first time as including infants, children, pregnant women, workers, and the elderly.
  • Impose at least 15 deadlines for EPA action; the deadlines would be developed with input from the Agency.
  • Create additional requirements and set reasonable limits on confidential business information claims.
  • Require that confidentiality claims be substantiated up front and impose a 10-year, renewable time limit on such claims.
  • Clarify that the existing right of Americans to sue and seek damages when they believe harm has been done is not affected by the bill.
  • Make clear that nothing in the bill affects the ability of litigants to obtain confidential information in a judicial proceeding.

H.R. 2576 is a much slimmer document than S. 607 and is silent on some revisions included in the Senate bill.  Also, where the same issues are covered, there are sometimes different solutions that will need to be unified in conference.

For more information or assistance with your Environmental and Health & Safety regulatory compliance needs, contact Ralph Carito at Total Environmental & Safety, LLC (Total) at rcarito@TotalEnviron.com or 908-442-8599.