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The New House Draft: Getting Warmer

A new discussion draft of the TSCA Modernization Act was unveiled late yesterday by Chairman Shimkus (R-IL) with the imprimatur as well of Chairman Upton (R-MI), Ranking Member Pallone (D-NJ), and Ranking Member Tonko (D-NY).

The new draft is a significant step toward a version of TSCA reform that can enjoy broad support. It’s not there yet, however. We’re hopeful that the remaining issues can be addressed as the Energy and Commerce Committee moves forward.

First, the members have negotiated a balance between the role of state and federal governments in chemical reform. No state will be preempted from acting on an existing chemical until and unless EPA takes action or exonerates the chemical after a full review. At that point states will be able to co-enforce the federal restriction. What states have already done won’t be rolled back and certain state activities will remain outside the scope of preemption altogether. There are important details that we are still analyzing, and additional changes may be needed, but overall, on this very contentious issue, the four members appear to have threaded the needle fairly well.

They have also addressed a number of the other issues we raised in our testimony on April 14. The hurdle to EPA initiating an assessment has been removed, and EPA is now required to initiate 10 assessments per year. That is a small number, certainly, but it is clearly achievable. The industry-initiated assessments will now have the same deadline as the ones EPA initiates. They’ve added a provision that requires EPA to screen existing chemicals for the properties of persistence and bioaccumulation and put those chemicals on a path for expedited action.

They have also made additional changes to address the role that cost-benefit analysis has played in paralyzing the current TSCA program. Unfortunately, in spite of these changes, this issue is still not solved in the new draft, in our view.

In our testimony, we said that costs should not be a factor in deciding whether a chemical poses a risk and that EPA rules should be required to fully protect against the risk. Costs should come in, we argued, only in choosing among options that protect the public, or as a factor in granting time-limited exemptions for critical uses. EPA made similar points in their testimony. A generous reading of the plain English in the new draft suggests an attempt to follow this formula. However, plain English and generosity have had little to do with our court system where TSCA is concerned. EPA was blocked from regulating asbestos ­– in spite of its enormous death toll – because of cost considerations 24 years ago. The role of costs versus health concerns, and its legal interpretation, has been the critical issue in TSCA and the draft needs more work to get it right. It’s fundamental.

Another major problem is that EPA still has no discretion to turn down an industry request to initiate a risk evaluation. Taken literally, EPA could wind up spending most of its time responding to industry requests to assess chemicals, rather than evaluating the chemicals that pose the biggest threat to public health and the environment. EPA should have discretion to cap these reviews so that they do not outweigh the reviews EPA initiates of its own accord in a given year.

Finally, the provision for expedited action on persistent and bio-accumulative chemicals is partially undermined by a mechanism whereby a company can yank the chemical off the fast track on to the regular track. It would be so much better if the bill just required early action on these most dangerous chemicals in a straightforward way.

We’re still evaluating the bill and will likely communicate our position on the pros and cons more fully and formally to the Energy and Commerce Committee.

At first blush, however, the movement is mostly in the right direction and it brings the bill within striking distance of meaningful, if limited, reform, if the Committee continues its work.