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Congress is struggling to rewrite a law regulating industrial chemicals.

Congress is struggling to rewrite a law regulating industrial chemicals.

Carly Lesser & Art Drauglis/Flickr (CC BY-SA 2.0)

U.S. chemical regulation reform gets boost as House passes TSCA rewrite

The U.S. House of Representatives Tuesday evening overwhelmingly approved a bipartisan bill that would update the nation's industrial-chemicals regulations for the first time in nearly 40 years. The bill—which would make it easier for the Environmental Protection Agency (EPA) to request new safety data on chemicals and regulate chemicals already on the market—takes a narrower approach than a competing bill in the Senate. But it brings Congress another step closer to making long-sought reform of the Toxic Substances Control Act (TSCA) a reality.

The 398 to 1 vote came just weeks after the bill, H.R. 2576,  sailed through a key House committee with unanimous bipartisan support. A Senate panel last month also advanced a far more expansive (but also more contentious) compromise measure of its own. The two actions mark what is arguably the furthest lawmakers have ever come in efforts to overhaul what they agree is a broken law, which they say has analytical and legal hurdles that have often prevented EPA from cracking down on harmful substances.

The House measure, sponsored by Representative John Shimkus (R–IL), who chairs a key subcommittee of the House Energy and Commerce Committee, resulted from negotiations that go back to the previous Congress. After previous measures that sought to update TSCA more comprehensively failed to gain support, lawmakers opted for a smaller bill to make it easier to gain broad support among industry's allies and environmental advocates in Congress. "The bill does not try to be all things for all people," Shimkus said on the House floor on 23 June. "Of course we want to be protected from harm. But we do not want needless expensive regulation."

Critics of the bill were swift to react. "We commend the House for its focus on the need to overhaul chemical policy, but this piece of legislation will not do the job," said Ken Cook, president of the Environmental Working Group, an advocacy group based in Washington, D.C., in a statement. "It tips much too far in favor of an industry in serious need of regulation."

The Senate and House measures—which enjoy chemicals industry backing but generally face opposition from environmental and public-health activists—have similar core provisions that seek to make it easier for EPA to evaluate and regulate industrial chemicals. For example, EPA is currently required to consider costs when assessing a chemical’s safety and choose the “least burdensome” way to regulate it. The bills would do away with these provisions, requiring EPA's chemical safety assessments to be based on scientific evidence alone and reducing the role of cost in determining the stringency of a regulation.

Both bills also:

  • Strive to make a more nationally uniform regulatory system, a key wish of the chemicals industry;

  • Require that chemical rules protect “vulnerable subpopulations” such as pregnant women and infants;

  • Give EPA more power to order new chemical safety data; and

  • Make it tougher for companies to shield chemical data from the public.

The Senate’s measure, S. 697, is far more expansive than the House’s; lawmakers said that narrower approach was the result of the need to write a bill that could survive the House’s political polarization. "While no one group gets all they might have hoped for in this legislation, every stakeholder group gets something that they need," said Representative Frank Pallone (D–NJ), top Democrat on the House Energy and Commerce Committee. The bill represents a strong compromise, he said.

Differences in House and Senate bills

One key difference is that the House bill would leave intact the current system for screening new chemicals: Unless EPA can prove they’re unsafe within a 90-day review period, new substances can generally go on the market by default. The Senate bill, by contrast, would generally bar new chemicals from entering the market until EPA signed off on their safety.

Other provisions that the Senate bill includes, but the House bill does not, would:

  • Direct EPA to sort chemicals into high- and low-priority categories;
  • Require the agency and companies consider using nonanimal forms of toxicity testing when possible; and
  • Set up a federal green chemistry research and development program.
  • The Senate bill also includes a provision setting up a new committee of scientists to advise EPA on chemical safety. (Though EPA has since announced that it would create a similar panel.)

The Senate's bill also would more aggressively preempt state regulation than does the House bill. While both measures aim keep current state chemical regulations on the books, the Senate bill would generally bar states from issuing new rules for a chemical if EPA were to classify it as a "high priority." That provision has angered environmentalists and liberal Democrats, who say that the states would serve as a valuable backstop and potentially flag additional toxic substances that don't make it onto EPA's radar. That provision is among the reasons why some environmentalists say the House bill is the lesser offender of the two competing proposals.

These differences are among those that lawmakers in both chambers would have to resolve to send a TSCA reform bill to President Barack Obama for signing. Shimkus said he hoped the momentum generated by the House vote would continue into negotiations. "We want to make sure we have a strong House position as we go into negotiations with the Senate," Shimkus said. "I think we're going to have that."

Senator Barbara Boxer (D–CA), the top Democrat on the Environment and Public Works Committee and a leading critic of the Senate bill, welcomed the House's action. “While the House bill could still be improved," she said in a statement, "I feel it is the appropriate bill to take up in the United States Senate where we can work on just a few amendments to make it better.  The Senate bill is far more complex.  Its preemption provision is complicated and will lead to the court house."

Lawmakers have expressed hope that they can finish TSCA reform this year.