U.S. House weighs in with its version of chemical regulation reform

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U.S. House weighs in with its version of chemical regulation reform

The U.S. House of Representatives opened a new front this week in the emerging battle over overhauling the nation’s troubled system for regulating toxic chemicals, as lawmakers held their first discussion of a new proposal to revamp the system. The bipartisan House bill, which wouldn’t change the existing law as drastically as two bills introduced last month in the Senate, got mixed reviews at a 15 April hearing of a subcommittee of the House Energy and Commerce Committee.

At issue is the Toxic Substances Control Act (TSCA), which tasks the Environmental Protection Agency (EPA) with the job of assessing and regulating thousands of industrial chemicals. The House's TSCA reform bill, which has drawn bipartisan support as well as some industry backing but measured criticism from environmental groups, aims to make it easier for the EPA to assess risks and give the agency more power to impose restrictions on unacceptably risky chemicals.

The bill “does not attempt to realize the goal of a fully reformed TSCA with assurances that all chemicals in commerce are safe,” said Representative Frank Pallone (D–NJ), the top Democrat on the energy and commerce panel, at the hearing. “But it will give EPA tools to reduce risk now, in a package that I think has the potential to become law."

Most stakeholders and lawmakers agree that TSCA, which Congress has not comprehensively updated since lawmakers enacted it in 1976, is broken. Past efforts to update the law have failed, but many observers hope that the tide is finally turning.

Last month, the Senate Environment and Public Works Committee started debating a bipartisan TSCA reform measure, S.697, which has already drawn support from chemical industry groups and at least one major environmental group (the Environmental Defense Fund). Under the bill, EPA would no longer have to consider costs in determining a substance’s risk or use the “least burdensome” method of regulation. Chemical companies also couldn't claim as much information on their substances as confidential.

EPA could also require companies to generate additional safety data; now, the agency must show there's a potential risk before seeking any new data. The agency would also have to take extra measures to protect pregnant women, infants, and the elderly. And the bill would require EPA to regularly update its chemical-review processes to reflect new scientific developments.

The House bill, the TSCA Modernization Act of 2015, would seek to toughen up TSCA, including by deleting the cost-consideration and "least burdensome" requirements. But it makes less drastic fixes in those areas than the Senate bill, and lacks many of S.697’s other provisions entirely.

At this week’s hearing, House lawmakers conceded that previous efforts to write a more comprehensive bill fell short. “We put more issues on the table than we could resolve,” said Representative Fred Upton (R–MI), chair of the House Energy and Commerce Committee. “Drawing on that lesson, this year’s bill is a little bit more focused.”

Absent from the House bill is Senate language requiring industry to show that proposed new substances don’t pose an “unreasonable risk” to public health or the environment before they can go on the market. (Now, proposed new chemicals can generally enter commerce unless EPA can show an unreasonable risk within 90 days.) The House bill is also silent on other Senate provisions, including those that would require EPA to prioritize which existing chemicals to review first, create a federal green chemistry research and development program, establish a panel of scientists to advise EPA on chemical safety, and encourage EPA to research and use nonanimal forms of testing.

Another big difference is that the House draft does not duplicate several highly controversial provisions of the Senate bill, including one greatly curbing the ability of state governments to issue future regulations. (Although it contains other language on the topic). The House draft also lacks Senate bill language requiring EPA to undertake additional studies if its wants to regulate “articles” that contain a risky chemical and not just the chemical itself.

Most environmental and health groups oppose S.697 (they favor S.725, a rival measure offered by some Democrats), and aren’t wild about the House bill, either. It is a bit better than S.697, but still “falls short of what is needed,” said Ken Cook, president of the Environmental Working Group, a Washington, D.C.–based advocacy group, in a statement. But the House approach, although flawed, “does hold a lot of promise" if changes can be made, said Andy Igrejas, director of Safer Chemicals, Healthy Families, a coalition of public interest and environmental groups, at the hearing.

In particular, Igrejas expressed concerns about language that could bar EPA from regulating a risky chemical if doing so was judged too costly, and a provision that could force EPA to use scientific procedures that the National Academy of Sciences has criticized. He also critiqued language that would require EPA to conduct chemical reviews if industry requests them, but appears to force the agency to justify any reviews that it wants to initiate by itself. And he said the bill should allow current state regulations to stay on the books and the scope of the bill’s other state restrictions narrowed. With fixes to these areas, he said, the bill "could be in shape where you have a genuine public health achievement.”

The Obama administration is not endorsing any bill at the moment, but says some provisions of the House bill need rewriting, including one giving EPA far shorter deadlines for industry-requested reviews. EPA toxics chief James Jones, speaking at the hearing, also warned that the bill would unwisely limit EPA’s discretion on which scientific procedures it can use in its reviews, which could prompt litigation if the agency were to deviate from them.

Representative John Shimkus (R–IL), chair of the House Energy and Commerce Committee’s environment subcommittee, said the proposal would likely undergo changes, some of which could come before a planned 14 May subcommittee vote on the measure. “We don’t have to get it perfect [on] the first bite,” Shimkus said. Backers are hoping to have the bill before the full House by late spring or summer.