House Amendment to the Senate Amendment to H.R. 2576, TSCA Modernization Act of 2015

H.Amdt. H.R. 2576

TSCA Modernization Act of 2015

Date
May 24, 2016 (114th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

On Tuesday, May 24, 2016, the House will begin consideration of the House Amendment to the Senate Amendment to H.R. 2576, the TSCA Modernization Act of 2015, under a structured rule. H.R. 2576 was introduced on May 26, 2015, by Rep. John Shimkus (R-IL) and was referred to the Committee on Energy and Commerce, which ordered the bill reported, as amended, by a vote of 47 to 0 on June 3, 2015. The House passed H.R. 2576 on June 23, 2015 by a vote of 398-1. H.R. 2576 passed the Senate on December 17, 2015, with an amendment, by voice vote.

Bill Summary

H.R. 2576 amends the Toxic Substances Control Act (TSCA) to identify and control unreasonable risks from chemicals using science based risk evaluations that consider health and environmental effects, while ensuring confidential business information is adequately protected.

The previous legislative digest for H.R. 2576, as considered by the House, can be found here.

The Senate Amendment includes the following major provisions:

  • Authorizes EPA to obtain new information on chemical substances from manufacturers and processes at certain stages of the safety evaluation and regulatory process;
  • Requires EPA to establish and implement a risk-based prioritization process to screen chemicals;
  • Addresses when federal actions under TSCA preempt requirements of state and local government related to restricting and banning chemical substances;
  • Institutes new EPA process for reviewing and maintaining industry requests that information submitted to the agency be kept confidential;
  • Requires EPA to establish new fees for chemical manufacturers who are required to submit data to the agency or who request that the EPA assess certain chemicals that are not yet priorities for review by the EPA.

The House Amendment to the Senate Amendment to H.R. 2576 is compromise text between the two chambers. A detailed summary by the Energy and Commerce Committee can be found here. Major provisions include:

Existing Chemicals

The House and Senate bills and the compromise text approach this problem similarly: by bifurcating the chemical regulation process into two steps (risk evaluation of a chemical and risk management of chemicals found to be problematic).

The first step to deciding whether regulation of a chemical is warranted is a scientific evaluation of the risk posed by a chemical, looking at its hazards and exposures without considering cost or other non-risk factors. If that analysis indicates that a chemical’s use presents an unreasonable risk, including to a vulnerable or susceptible population, then EPA will turn to the second step, a rulemaking to manage the risk. Once EPA decides a chemical poses an unreasonable risk, the agency is required to issue a risk management rule, ranging from minimum labeling or notice requirements to an outright ban.

New Chemicals

The compromise text contains the key elements of the Senate-passed bill. EPA is required to review and make an affirmative finding about the level of risk posed by the new chemical without regard to cost. The chemical may not be commercially produced until EPA rules on it, and the chemical cannot be produced without being in compliance with EPA restrictions on the chemical that are without regard to cost. The compromise text attempts to tighten the timeline for EPA to take action requiring EPA to make a determination about, and choose a necessary regulatory option for, a chemical within 90 days, but no later than 180 days if more time is needed.

The compromise text gives EPA four determinations from which to choose regarding whether the new chemical or new use: (1) presents an unreasonable risk (in which case EPA must immediately take regulatory action under current law subsection (f)); (2) may present an unreasonable risk, is made in large quantities, or there isn’t enough information to make a determination (which would trigger order requirements under subsection (e)); (3) is likely not to present a risk under the conditions of use (in which case manufacture may begin); or (4) is a subset of option #3, a low hazard, and manufacture may begin.

Chemical Testing

TSCA Section 4 provides EPA authority to require testing of new and existing chemicals under a wide variety of circumstances so long as EPA has a reasonable basis for concern about the chemical. In order to require testing, EPA must also lack information that only new testing can address, the new testing must be mandated by rulemaking, and be subject to notice and comment. The compromise text maintains existing law, but also specifies key points in the evaluation and regulatory process where EPA may order testing (e.g. prioritization for risk evaluation and the risk evaluation itself). In addition, the compromise text reduces animal testing required under TSCA.

Chemical Reporting

TSCA Section 8 requires EPA to maintain an inventory of all chemicals that have ever been on the U.S. market. The House-passed bill did not amend this part of TSCA. The Senate-passed bill contained many details requiring EPA to update the inventory and it also required the use of certain chemical naming or nomenclature conventions. The compromise text updates EPA’s inventory and codifies industry nomenclature conventions.

Protection of Trade Secrets

The compromise text specifies that EPA must continue protecting trade secrets submitted to it for 10 years, including when disclosure of proprietary chemical formulas would reveal secrets about the chemical manufacturing process. The compromise text adopts the Senate’s system to claim, substantiate and re-substantiate, review, and adjudicate claims for protection of trade secrets.

State-Federal Relationship

Preemption under the compromise text begins with a general rule (subject to later provisions saving certain state laws) that states and local governments may not (1) duplicate federal information developments requirements, (2) restrict a chemical that EPA’s scientific risk evaluation found does not present an unreasonable risk, EPA has published risk management regulation; or required notification for a significant new use or a new chemical.

There are exceptions to the general preemption rule. These include state laws carrying out federal laws, reporting requirements that are not otherwise required under federal law, or related to water or air quality, or waste treatment or disposal. Also state laws restricting chemicals that were enacted prior to April 22, 2016, are not preempted, nor are any actions taken by a state pursuant to a law enacted prior to September 2003.

Science

The compromise text (like both the House and Senate-passed bills) requires that science-based decisions be made based upon the weight of the scientific evidence. The compromise text (like the Senate-passed bill) requires that EPA use scientific information, technical procedures, measures, methods, and protocols predicated on the high quality science elements of the House-passed bill.

Fees

The compromise text allows fees collected under one provision to be used to work on the same chemical under testing, evaluation and regulation, and information protection provisions. The bill caps overall fee collection (with some exceptions) to 25% of EPAs cost for regulating new and existing chemicals and test orders or $25 million, whichever is lower, and requires manufacturers who request risk evaluations of their chemicals to pay the full cost of the evaluation and regulation.

Other Provisions

  • Amendments to the Mercury Export Ban Act of 2008 clarifying waste management obligations of the U.S. government and of elemental mercury producers.
  • “Trevor’s Law” to designate and investigate cancer clusters.
  • S. 1916 (H.R. 4111), the Rural Health Care Connectivity Act of 2016, authored by Senator John Thune (R-SD). This section adds “skilled nursing facilities” to the definition of a Health Provider in Section 254 of the Communications Act related to Universal Service. The section defines skilled nursing facility by cross-reference to the definition used in the Social Security Act. The section requires the changes identified in the bill be made six months after the legislation is enacted.

Background

The Toxic Substances Control Act (TSCA) was enacted in 1976 and “authorizes the EPA to screen existing and new chemicals used in manufacturing and commerce to identify potentially dangerous products or uses that should be subject to federal control. Both naturally occurring and synthetic chemicals are subject to TSCA, with the exception of chemicals regulated under other federal laws concerning food, drugs, cosmetics, firearms, ammunition, pesticides, tobacco, or mixtures. EPA may require manufacturers and processors of chemicals to conduct and report the results of tests to determine the effects of potentially dangerous chemicals on living things. Based on test results and other information, EPA must regulate the manufacture, importation, processing, distribution, use, and/or disposal of any chemical that presents an unreasonable risk of injury to human health or the environment. A variety of regulatory tools is available to EPA under TSCA, ranging in severity from a total ban on production, import, and use to a requirement that a product bear a warning label at the point of sale.”[1]

Since its enactment, TSCA has been amended to regulate chemicals such as asbestos, radon, formaldehyde, mercury, and residential lead-based paint. According to the Committee, “TSCA has proven to be ineffective in providing adequate protections and facilitating U.S. chemical manufacturing and use – this is particularly true today, in the face of industry advancements and increased interstate commerce. Modernization of the law is necessary to improve protections for public health and the environment, to provide the public greater confidence in the safety of U.S. chemicals, and to promote further innovation and economic growth.”[2]

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[1] See CRS report, “The Toxic Substances Control Act (TSCA): A Summary of the Act and Its Major Requirements,” April 1, 2013.
[2] See Energy and Commerce, “Objectives: H.R. 2576, The TSCA Modernization Act,” May 27, 2015.

Cost

The Congressional Budget Office (CBO) estimates that enacting H.R. 2576 with the Senate Amendment would reduce discretionary costs by $8 million over the next five years, assuming appropriation actions consistent with the bill. A CBO estimate for the House Amendment to the Senate Amendment is not currently available.

 

Amendments

  1. Rep. John Shimkus (R-IL)—The Manager’s Amendment makes technical and conforming changes to the Rules Committee Print 114-54 and makes additional changes including modification to preemption and deletion of a low hazard chemical designation.

Additional Information

For questions or further information please contact Jake Vreeburg with the House Republican Policy Committee by email or at 5-0190.