Quickly reconciling the recently passed House and Senate bills overhauling the Toxic Substances Control Act (TSCA) is reportedly a top priority for congressional leaders this year. Earlier this month, Bloomberg BNA reported that House Energy and Commerce Committee Chairman Fred Upton (R-MI) and Rep. John Shimkus (R-IL), chairman of the energy committee’s Environment and the Economy Subcommittee, would be meeting privately to set the subcommittee’s agenda, including how to reconcile the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) and the TSCA Modernization Act (H.R. 2576). Senator James Inhofe (R-OK), chairman of the Senate Environment and Public Works Committee, also told reporters that he was meeting with Rep. Upton to discuss the same topic.

Asked when final legislation might come before Congress, Sen. Inhofe suggested as early as this month or next month. He also noted that priorities for reconciliation include “making sure the EPA does what they’re supposed to be doing in pre-classifying chemicals.” Rep. Upton told Bloomberg BNA that reconciling the two bills is “high on both of our agendas,” and Rep. Shimkus said he was “pretty optimistic.”

It remains unclear, however, if both chambers will hold a formal conference committee or find a compromise in private that would then be approved by the House and Senate.

The bills are supported by a broad range of industry stakeholders, including the 3M, American Apparel & Footwear Association, American Chemistry Council, BASF, Dow Chemical, DuPont, and the National Retail Federation.

However, state and territorial environmental regulators have taken a more critical position. Last week, the Environmental Council of States released an analysis of the two bills highlighting provisions and sections that should be added or retained during reconciliation. Although not an official position of the organization, ECOS said the analysis is meant to be “a guide to selected issues of interest” to state environmental agencies. The analysis focuses mainly on preemption issues, including timing, grandfathering, and waivers, as well as the requirement that EPA share Confidential Business Information (CBI) data with states, and largely favors the Senate bill. However, the analysis also strongly advocates eliminating several provisions from the Senate version, including those authorizing a “regulatory pause” on state action and industry requests for safety determinations.

Yesterday, Chemical Watch reported that the Society of Chemical Manufacturers and Affiliates (SOCMA) sent a letter to key members of Congress expressing its preference for certain features of the House bill. SOCMA, the trade group for specialty chemical manufacturers, cited the House version’s stronger protections for the confidentiality of chemical identity. The trade group argued that the Senate version would have the perverse effect of discouraging submitters of Premanufacture Notices (PMNs) from conducting health and safety studies, which would trigger the disclosure of chemical identity information. SOCMA also wrote in support of the House bill’s provisions on fees, which are linked to recovering costs for the TSCA Section 5 program and do not apply to businesses that are exempt from submitting data, whereas the Senate bill authorizes fees for exemption requests. In addition, the letter urged Congress “to resist calls to adopt an approach that would prevent a [PMN] submitter from commencing manufacture until EPA issued its determination, even if EPA missed its 90/180-day deadline.”

Last week, the U.S. Senate came closer to passing bipartisan legislation to reform the Toxic Substances Control Act (TSCA) than ever before – but still failed to bring S. 697 to the floor. The bill, co-authored by Senators Tom Udall (D-NM) and David Vitter (R-LA), is still not scheduled for a floor vote, which will have to wait until after Congress returns from its Columbus Day recess.

On Friday, October 2, the “Frank R. Lautenberg Chemical Safety for the 21st Century Act” reached the filibuster-proof level of 60 cosponsors with the added support of Senators Ed Markey (D-MA) and Dick Durbin (D-IL). The new cosponsors came aboard as part of a deal promising changes to the bill, including increases to the annual funding cap for industry fees from $18 million to $25 million and measures to streamline the state preemption waiver process. At the same time, Senator Barbara Boxer (D-CA), who has been a vocal critic of the bill, reportedly agreed to allow S. 697 to advance. On Thursday, a diverse alliance of advocates – including the American Chemistry Council and Environmental Defense Fund – rallied outside the Capitol to support the legislation.

However, the news and optimism was quickly overshadowed by the announcement on Monday, October 5, from Senators Richard Burr (R-NC) and Kelly Ayotte (R-NH) that they would block consideration of the TSCA reform bill unless reauthorization of the Land and Water Conservation Fund (LWCF) was added as an amendment.

The LWCF proposal was met with resistance by Senators Udall and James Inhofe (R-OK), chair of the Environment and Public Works Committee, who are trying to keep out amendments that are not “germane.” In a letter to Senate Majority Leader Mitch McConnell (R-KY), Senate Democratic leaders pushed for separate floor time to address the reauthorization of LWCF, with the hope of clearing the way for TSCA reform.

Instead, the Senate adjourned today for a week-long recess without voting on the matter, meaning the Udall-Vitter bill could not reach the floor until October 19, at the earliest. Senators Udall and McConnell are said to be working on resolving the LWCF roadblock in order to secure the passage of S. 697, which is expected to pass easily once the procedural hurdles of scheduling a floor vote are surpassed.

Today, the House Energy and Commerce Committee approved the TSCA Modernization Act (H.R. 2576), setting up the bill for a floor vote currently scheduled for June 23. The vote was 47-0 with one abstention, by Rep. Anna Eshoo (D-CA), who warned of the legislation’s insufficient protections for state chemical laws. Rep. John Shimkus (R-IL), the initial author of the proposal, also won adoption of a technical amendment [PDF] making minor changes to the bill’s language.

The preemption of state laws has been a major sticking point in this year’s proposals to reform the Toxic Substances Control Act (TSCA) in both the House and Senate. Notwithstanding changes to the TSCA Modernization Act designed to address those concerns, environmental and public health advocacy groups have not dropped their opposition to the bill. In addition, a dozen state Attorneys General representing California, Massachusetts, New York, and Maryland, among other states, sent a letter [PDF] last week to Energy and Commerce Committee leaders Fred Upton (R-MI) and Frank Pallone (D-NJ). In the letter, the Attorneys General expressed concern that the bill “scales back the states’ police powers and inhibits the traditional state-federal partnership that protects the public from toxic chemicals.” Following promises from Rep. Upton to negotiate new state preemption language before the floor vote, Rep. Eshoo agreed to withdraw her own proposed amendment [PDF] meant to clarify ambiguities on state authority. Rep. Pallone suggested that the state authority issues might be addressed later, although Rep. Shimkus suggested that the scope of the proposed changes may be too disruptive to win sufficient support for passage.

While the Environmental Working Group criticized the bill’s approval, saying the legislation “falls short,” industry groups responded favorably and continue to push for action in the Senate. Over 140 trade groups ranging from the Alliance of Automobile Manufacturers to the U.S. Chamber of Commerce, organized as the American Alliance for Innovation sent a letter [PDF] to Senate Majority Leader Mitch McConnell (R-KY) urging the swift passage of S. 697, the “Frank R. Lautenberg Chemical Safety for the 21st Century Act,” which they described as a “balanced compromise.” Yesterday, Bloomberg BNA reported that Sen. McConnell had not scheduled floor time for the bill yet, so it would not reach the floor until July or August.

The House Subcommittee on Environment and the Economy unanimously approved the Toxic Substances Control Act Modernization Act of 2015, a revised version of the bill first introduced by Subcommittee Chair Rep. John Shimkus (R-IL) last month to fix key flaws in the Toxic Substances Control Act (TSCA). At today’s markup, Rep. Shimkus said he was “more encouraged than ever” that the outdated law would finally be modernized to meet the public’s expectations and protect human health and the environment.

Yesterday, Rep. Shimkus was joined by new co-sponsors Rep. Paul Tonko (D-NY), Ranking Member of the Subcommittee; Rep. Fred Upton (R-MI), Chair of the Energy and Commerce Committee; and Rep. Frank Pallone (D-NJ), Ranking Member of the full Committee, in unveiling changes to the draft bill and calling for the legislation’s passage. The changes addressed some of the most criticized and controversial aspects of the original draft and TSCA reform, including timelines for chemical assessments and federal preemption of state laws.

Rep. Shimkus emphasized that the revised legislation’s basic approach remained the same as in his original draft: empowering EPA to review existing chemicals on the market and “make science-based decisions about whether they pose an unreasonable risk of injury to human health or the environment.” Under the bill, EPA would first assess the safety of a chemical based on hazard and exposure. Cost and other economic factors, including benefits, would not be considered until the second step, when EPA chooses how to regulate the assessed chemical, and a “reasonable transition period” would be required.

Changes from the original bill include:

• Requires EPA to complete at least 10 chemical assessments per year and to issue risk management rules within 90 days completing an assessment;
• Creates an accelerated path for assessing persistent, bioaccumulative, and toxic (PBT) substances;
• Sets different timelines for completing assessments depending on whether they are initiated by EPA or requested by industry;
• Explicitly preserves private causes of action and existing state laws not in conflict with TSCA, including California’s Proposition 65 and other chemical laws passed before August 1, 2015;
• Limits the effectiveness of federal preemption of state chemical laws until after EPA makes a final assessment decision;
• Ensures that user fees are spent only for specific purposes, rather than deposited in the Treasury’s General Fund;
• Allows EPA to issue five-year “critical use” exemptions for chemicals if the agency’s regulatory requirements would not be cost-effective for a specific use and EPA determines that application of the requirement “would significantly disrupt the national economy, national security, or critical infrastructure.”

While subpanel members were all supportive of the new draft, some remaining issues were highlighted. Rep. Shimkus encouraged a bipartisan effort to amend TSCA section 8, which the current draft does not address.

Both industry and environmental groups have voiced support for the new version of the bill. The American Chemistry Council called it “balanced” and “pragmatic,” while the Safer Chemicals Healthy Families coalition said the changes brought the legislation “within striking distance of meaningful, if limited, reform.”

The bill now proceeds to the full Energy and Commerce Committee, which may schedule a markup as soon as next week.

The prospects for passing legislation to modernize the Toxic Substances Control Act (TSCA) have improved considerably with the approval of S. 697, the “Frank R. Lautenberg Chemical Safety for the 21^st Century Act,” by the Senate Environment and Public Works Committee. In a 15-5 vote, the Senate panel passed a compromise version of the legislation, called a “manager’s amendment,” following weeks of negotiation which won over the support of Senators Sheldon Whitehouse (D-RI), Jeff Merkley (D-CO), and Cory Booker (D-NJ). Lawmakers announced late yesterday that they had reached an agreement on changes to the bill, which was originally introduced in March by Senators Tom Udall (D-NM) and David Vitter (R-LA). According to E&E Daily and the Huffington Post, the compromise changes include:

• State preemption: States can regulate specific chemicals when EPA is in the process of making a safety determination, but new restrictions are preempted if EPA “defines the scope of the uses of a chemical.” If EPA fails to meet deadlines for safety determinations or state waiver requests, states automatically receive a waiver keeping state law in effect. States will also be allowed to impose chemical disclosure requirements and keep existing chemical bans effective before August 1, 2015 (previously January 1, 2015).
• State co-enforcement: States will continue to be able to co-enforce federal laws; penalties may not be collected for the same offense.
• Prioritization standards: Chemicals are to be designated as high priority if they present “significant” hazard and exposure, instead of “high” hazard and “widespread” exposure. The designation of a chemical as low priority will be subject to a 90-day comment period.
• Persistent, bioaccumulative, and toxic (PBT) chemicals: EPA will be required to prioritize PBT chemicals for review from the current TSCA Work Plan list.
• Requested assessments: Companies can request the assessment of a particular chemical, but EPA is not required to count such assessments towards the agency’s annual quota of assessments. These requested assessments would have no effect on state laws until a final regulatory action is taken by EPA. A limit on requested assessments relative to agency-initiated assessments will also be imposed.
• Product imports: The compromise bill removed a section making it more difficult for EPA to regulate articles under the safety evaluation process.

Senator Barbara Boxer (D-CA), who had introduced a competing TSCA reform proposal, offered several amendments in Committee, but none attracted sufficient votes to pass. While vowing to continue lobbying for her amendments – which would give states more power, set tighter deadlines, and require EPA to target asbestos and track and act on local disease clusters, etc. – Sen. Boxer praised the compromises, saying, “We got rid of a horrible bill. We have a bill that makes progress.” Most environmental and health advocacy groups have also applauded the Senate panel’s work, calling it “an important milestone,” but are continuing to call for changes.

The bill is expected to proceed to the full Senate in the coming weeks.