Congress to Give EPA Greater Authority Through Toxic Substances Control Act

Originally published by: Bloomberg GovernmentMay 23, 2016

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Republicans in Congress have voted dozens of times to block regulations by President Barack Obama’s EPA. This week they are set to give the agency more authority.

After a bipartisan accord, Congress is poised to overhaul the 40-year-old Toxic Substances Control Act, with legislation to give the agency greater wherewithal to regulate about 100 hazardous chemicals.

“For decades all stakeholders on this issue agreed that this area of federal law had to be updated,” Sen. David Vitter, a Louisiana Republican, said. “Now we’re doing that and passing this very needed update which is the first major statutory update to environmental law that’s been passed in over 25 years.

Vitter predicted the measure, planned for the House floor as soon as Tuesday, would sail through the Senate with little debate this week.

Under existing law, EPA has succeeded in regulating only five toxic chemicals since 1976, prompting public health advocates to decry TSCA as broken. Part of the problem is that the law grants EPA only 90 days to decide whether a new chemical poses “unreasonable risk” before it can enter the market, and agency officials say they rarely get the toxicity data they need to make that call in time.

The compromise legislation posted Friday would remove those procedural hurdles, require EPA to focus on “high priority” chemicals such as arsenic and asbestos, and give the agency new tools to collect data from companies. It also grandfathers in some existing state chemical safety laws, such as those enacted under California’s Proposition 65, but limits states’ authority to create their own restrictions on chemicals in the future. State pre-emption was a key point of contention between Democrats and Republicans during negotiations.

“Our agreement clearly states that if the federal government does not complete the process to regulate a chemical within a three-and-a-half year period, then the states are free to act on that chemical,” Sen. Barbara Boxersaid Thursday.

Industry advocated for the federal law in part to avoid a patchwork of different state rules, and in part to reassure the public about the safety of chemical products. “Over time, confidence in EPA’s regulation of chemicals has eroded,” the American Chemistry Council said on its website. “This lack of confidence has created pressure on individual state legislatures to create their own chemicals management laws and on retailers to pull products from the shelves, often based on the claims of activists rather than scientific conclusions.”

The EPA called the bill “a clear improvement over current law.” Some safety advocates are less enthusiastic. The draft “contains several reforms that would empower EPA, but it also restrains EPA and especially state governments in new and unacceptable ways,”Andy Igrejas, director of Safer Chemicals, Healthy Families, said in a statement.

And some House Democratic leaders also raised concerns about the bill. Rep. Paul Tonko of New York, the top Democrat on the House Energy and Commerce Committee’s Environment panel is withholding his support, over concerns about pre-emption. The legislation includes “unprecedented, new limitation of states’ authorities,” Tonko said in statement Friday. The House-passed version of the bill included stronger state protections than either the Senate-passed or negotiated versions. The committee’s ranking Democrat, Rep. Frank Pallone of New Jersey, said earlier in the week that he also has problems with the bill.

“Only time will tell whether this rewrite is better than what’s on the books now,” said Scott Faber, vice president of government affairs at the Environmental Working Group, which also opposes the measure. Faber singled out as problematic the bill’s failure to define “low hazard designations.”

Rep. John Shimkus, the bill’s chief sponsor in the House, said the legislation is moving forward with or without Pallone and Tonko. “If we can, we’d like to have them on board,” he said, but “we don’t need them.”

The House Rules Committee will consider the bill on Monday evening, teeing it up for a floor vote as early as Tuesday.

Sen. Jim Inhofe, chairman of the Senate Environment and Public Works Committee said he expects the Senate to take up the bill as soon as it’s passed by the House. “We’ll have it passed, signed, to the President’s desk before the recess,” which starts at the end of this week.