After much anticipation, the long-awaited new version of the Senate bipartisan bill to modernize the Toxic Substances Control Act (TSCA) was released today by Senators Tom Udall (D-NM) and David Vitter (R-LA). The proposal, called the “Frank R. Lautenberg Chemical Safety for the 21^st Century Act,” is a new version of the “Chemical Safety Improvement Act” (CSIA) introduced by Sens. Frank Lautenberg (D-NJ) and Vitter in May 2013.

Like the CSIA, today’s proposal sets a new safety standard of “no unreasonable risk of harm to health or the environment” from exposure of the chemical under the conditions of use, including to potentially susceptible populations – such as infants, pregnant women, the elderly, or workers – as identified by EPA. The bill authorizes EPA to obtain new information on chemicals throughout the safety evaluation process under TSCA § 4 and establishes a “tiered screening and testing” system. Under the bill’s safety evaluation process, articles can only be prohibited or “otherwise restrict[ed]” if EPA has “evidence of significant exposure to the chemical substance from such article.” To reduce duplicative testing, the Udall-Vitter proposal provides for a framework for the “fair and equitable reimbursement” of data development costs.

EPA would be required to establish a risk-based prioritization scheme of high- and low-priority substances within one year of enactment, and an interim list of 10 substances in each category. Additional prioritization milestones for three and five years after enactment are also specified. The bill provides various criteria for prioritization, including recommendations from states, hazard and exposure potential, etc. States would be able to seek judicial review of low-priority designations, and such designations “must be based on information sufficient to establish that the substance is likely to meet the safety standard.” The prioritization scheme also provides for an “additional priority” allowing companies to request the EPA to fast-track safety evaluations and determinations, which would be fully funded by user fees.

Significantly, the Udall-Vitter bill directs EPA to set up a user fee program to fund 25% of program costs including safety evaluations and regulations, up to $18 million. This fee authority would be collected and made available “only to the extent and in the amounts provided in advance” as appropriated by Congress.

The new proposal takes a somewhat different tack on state preemption than the CSIA. The enforcement of existing state statutes and administrative actions on specific substances will not be preempted until the effective date of the applicable federal action, e.g., an EPA Significant New Use Rule, test order, or safety determination. However, new state statutes or administrative actions prohibiting or restricting substances designated as high-priority would be preempted as soon as EPA commences a safety assessment. Like the original CSIA, the new bill provides for a system in which states may apply for a waiver from preemption, subject to various conditions. EPA’s waiver decisions would be subject to notice and comment and subject to judicial review.

In addition, the bill provides for an interagency “Sustainable Chemistry Program” to coordinate and support sustainable chemistry-related research, development, commercialization, education, etc., although “sustainable chemistry” is not defined.

Sen. Lautenberg, who passed away in June 2013, was a long-time champion of public health and environmental protection, including TSCA reform efforts. The invocation of Sen. Lautenberg’s legacy, however, may “inflame divisions” between Senator Barbara Boxer (D-CA) and other Democrats. Sen. Boxer vocally opposed the CSIA, criticizing that proposal’s preemption of state regulations. The California Attorney General has already written a sharp critique of the Udall-Vitter proposal, calling it an “unprecedented and unnecessary evisceration of state regulatory authority.”

Environmental and other advocacy groups, including the Environmental Working Group and Safer Chemicals, Healthy Families coalition, are already publicly opposing the new bill and calling for changes. Chemical industry groups, including the American Chemistry Council (ACC) and the Society of Chemical Manufacturers and Affiliates, are lauding it and pushing for its passage. The New York Times quoted Richard Denison, senior scientist at the Environmental Defense Fund, calling the bill “a solid compromise that would be much more protective of public health.” In the same article, ACC president Cal Dooley predicts the legislation could garner 70 votes on the Senate floor.

Sen. Udall also said that he is working with Rep. John Shimkus (R-IL) on related legislation in the House.

The Senate Environment and Public Works Committee is reportedly holding a hearing on TSCA on March 18. The late Sen. Lautenberg’s widow, Bonnie Englebardt Lautenberg, is expected to speak in favor of the Udall-Vitter bill. The draft legislation is available here, and a fact sheet prepared by Sens. Udall and Vitter is available here.

Chemical Watch reports that Rep. John Shimkus (R-IL), head of the House Subcommittee on Environment and the Economy, is planning “a more limited reform measure” to modernize the Toxic Substances Control Act (TSCA) compared to the Chemicals in Commerce Act (CICA) draft that he first introduced last year. Attempts to negotiate a compromise on that legislation stalled when Republicans and Democrats could not agree on revisions and counter-proposals from either side.

Rep. Shimkus’ strategy is to offer Democrats the chance to add amendments in exchange for committing to support the legislation. However, Rep. Shimkus would not reveal what the limited scope of his proposal would target. He did cite Rep. Frank Pallone’s (D-NJ) expression of interest in working on TSCA reform as “a pretty positive sign.”

In terms of timing, Rep. Shimkus said he would like to move the bill “sooner than later, and have it off the floor before the August break.”

Rep. Shimkus also expressed hope that the more limited House proposal, if approved, could be resolved in conference committee with the more expansive TSCA reform legislation expected from the Senate side.

In the wake of last week’s Republican takeover of Congress, the chemical industry is optimistic that Congress will be able to quickly pass legislation updating the Toxic Substances Control Act (TSCA). Cal Dooley, the president of the American Chemistry Council (ACC), told journalists yesterday that the legislation proposed by Senators David Vitter (R-LA) and Tom Udall (D-NM) would “see committee action relatively soon in the congressional session,” since Sen. Barbara Boxer (D-CA), who opposed the bipartisan Chemical Safety Improvement Act (CSIA), will be replaced as chair of the Senate Environment and Public Works Committee by Sen. Jim Inhofe (R-OK).

Dooley also said he expected further developments in the House Energy and Commerce Committee, where Rep. John Shimkus (R-IL) has already introduced and held hearings on his proposed Chemicals in Commerce Act (CICA).

Although it remains unclear if enough Senate Democrats will support the CSIA, or if President Obama would back a law that preempts state restrictions, Dooley predicted that TSCA reform would pass both the House and Senate and be signed into law next year.

Yesterday, Sen. Barbara Boxer (D-CA), Chair of the Senate Environment and Public Works Committee, released her “counterproposal” to the bipartisan Chemical Safety Improvement Act (“CSIA”) to modernize the Toxic Substances Control Act (“TSCA”). The counterproposal, called the “Boxer Toxic Substances Control Act,” takes the form of a “redline” or amended version of a July 31 draft of the CSIA from Sens. David Vitter (R-LA) and Tom Udall (D-NM). Changes in the Boxer proposal include:

• Strengthens testing requirements for chemical prioritization;
• Specifies storage near drinking water sources as a factor in determining prioritization;
• Authorizes EPA to regulate chemicals in mixtures and articles;
• Removes state preemption provisions; and
• Adds a fee system based on the number of chemicals EPA reviews.

The release of Boxer’s legislation this late in the Congressional session suggests that TSCA reform is unlikely to pass in the current Congress. Sen. Vitter criticized Sen. Boxer for releasing the latest CSIA draft to the press without his consent as “not a good faith effort to reach consensus but a press stunt/temper tantrum.” Sen. Boxer introduced her proposal along with a pointed “critique” [PDF] of the CSIA, finding fault with the CSIA’s long timetables for reviewing high-priority chemicals; “ambiguous and weak” standards for low-priority chemicals; preemption of state laws; failure to “ensure that chemical disposal and unintended releases, like the one in West Virginia, are covered by EPA reviews and regulations”; and lack of a fee system, among other issues.