March 01, 2015

Fixing an “Outdated” Law: The Chance for Bipartisan TSCA Reform

Sean J. Wright

After more than thirty-eight years without substantive change, there is hope that the much-harangued Toxic Substances Control Act (TSCA), the nation’s main chemical control statute, is on the brink of bipartisan reform. In the nearly four decades since its passage, Congress and many stakeholders have neither agreed on how the law has been interpreted nor on the effectiveness of the rules developed by the U.S. Environmental Protection Agency (EPA). All sides, however, can agree on this: TSCA needs to be modernized to achieve its broad and laudable goal of preventing unreasonable risks of injury from chemical substances to health or the environment. Currently, with competing reform packages moving through the U.S. House of Representatives and the U.S. Senate, the chance for change may be now.

TSCA, the “toothless” tiger of our environmental statutes, developed a federal system to manage the manufacture, distribution, processing, use, and sale of chemicals thought to be dangerous to human health and the environment. See 40 C.F.R. § 710.3 (2009). It is also widely considered a failure. As Charles Franklin notes, “[a]s implemented and interpreted by federal courts, TSCA has been a disappointment, if not an abject failure, to most stakeholders.” Charles Franklin, TSCA reform versus replacement: Moving forward in chemical control debate, 44 Trends 1 (2013).

The impetus for chemical substances regulation dates back to the early 1970s. Then, incidents like the kepone contamination of the James River prompted congressional concern that existing and future chemicals posed significant public health and environmental risks. See David Markell, New Directions in Environmental Law: An Overview of TSCA, Its History and Key Underlying Assumptions, and Its Place in Environmental Regulation, 32 Wash. U. J.L. & Pol’y 333, 342 (2010). Congress’s ultimate purpose in adopting TSCA was to “prevent unreasonable risks of injury to health or the environment associated with the manufacture, processing, distribution in commerce, use, or disposal of chemical substances.” S. Rep. No. 94-698, at 1 (1976), reprinted in 1976 U.S.C.C.A.N. 4491, 4491. Signing the law, President Ford proclaimed it “one of the most important pieces of environmental legislation that has been enacted.” Regulating chemicals he proclaimed would “close a gap in our current array of laws to protect health of our people and the environment.” Statement on Signing TSCA (Oct. 12, 1976).

Following passage of the law, former EPA Administrator Russell Train characterized TSCA as “one of the most important pieces of ‘preventative medicine’ legislation ever passed by Congress.” Press Release, U.S. EPA, Train Sees New Toxic Substances Law as “Preventative Medicine,” (Oct. 21, 1976). This was an understandable position. When the law was enacted, “[t]here were approximately 62,000 chemicals in commerce and covered by TSCA as of the late 1970s, when EPA began reviewing chemicals under TSCA.” Markell, supra, at 352. Since then, 21,000 new chemicals have been added to the inventory. Id. By regulating the large swath of chemical substances, injuries associated with the manufacture and distribution of chemicals would be prevented up front.

In enacting TSCA, Congress announced three main policy priorities regarding chemical substances. First, Congress hoped that adequate data would be developed to identify the impact chemical substances had on public health and the environment. TSCA § 2(b). Second, to ensure that there was authority to regulate chemical substances that present an “unreasonable risk of injury to human health or the environment.” Id. Finally, this authority “should be exercised in such a manner as not to impede unduly or create unnecessary economic barriers to technological innovation.” Id. These policy goals did not provide EPA carte blanche. For example, TSCA Section 6(a) required EPA to select the “least burdensome means” when regulating.

A Toothless Tiger

Since its passage, TSCA has been hampered by a series of setbacks. First, several sections of the law require testing of chemicals, but the lack of effective federal testing requirements has prompted states to regulate on their own. For example, section 4(a) requires testing for impact on health and the environment. If the manufacturing, distribution, processing, or use of the chemical may present an unreasonable risk of injury, and there is “insufficient data or experience” to determine the effect of the substance on health, testing is “necessary to develop such data.” 15 U.S.C. § 2603(a)(1)(A)(i)-(iii) (2006). Moreover, if the chemical is produced in substantial quantities, and there is a dearth of data on its impact on health, testing may also be required. Id. If these factors are met, EPA “shall” require testing by rule or through Enforceable Consent Agreement. 15 U.S.C. § 2603(a), (b)(3)(A).

As conceived, the regime provides EPA with broad discretion and authority to mandate testing of chemical substances. In practice, as noted by the U.S. Government Accountability Office (GAO) in a 2005 report to Congress, EPA faces “difficulties obtaining such information” and “has made little progress in reviewing existing chemicals” since the program’s inception. GAO, Chemical Regulation: Options Exist to Improve EPA’s Ability to Assess Health Risks and Manage its Chemical Review Program 1, GAO-05-458 (2005). The report concludes that EPA officials did “not believe that TSCA’s authorities under section 4 provide an effective means for testing a large number of chemicals.” Id. at 26.

The GAO reiterated its findings in a 2009 report, highlighting how EPA fails to routinely review the 80,000 chemicals in use and that EPA has issued rules or entered into agreements requiring testing “for only about 200 chemicals” because of a lack of resources and the extensive amount of time needed. GAO, Chemical Regulation: Options for Enhancing the Effectiveness of the Toxic Substances Control Act 5, GAO-09-428T (2009) (2009 GAO Report). Frankly, EPA has found it costly and time-consuming to promulgate rules. In the place of robust EPA review, much of the burden has fallen on industry to submit to testing voluntarily. For example, in 1998, EPA announced the High Production Volume (HPV) Chemical Challenge Program, as part of the Chemical Right-to-Know Initiative. EPA, Chemical Right to Know: High Production Volume Chemicals Frequently Asked Questions, EPA 745-F-09-002g (1999). Data is collected on HPV chemicals, but testing is required only if existing data is insufficient. Id. Through corporate cooperation, the “basic toxicity of approximately 2800 chemicals is made available to the public.” Ashley Crooks et al., Environmental Crimes, 51 Am. Crim. L. Rev. 1051, 1135 n. 572 (2014); see also 64 Fed. Reg. 24151-01 (May 5, 1999).

Second, under section 6, the agency is restricted to regulations that are the least burdensome option for industry. EPA has a broad range of tools to regulate chemical substances when EPA determines that there is a “reasonable basis” to conclude that the chemical substance “presents or will present an unreasonable risk of injury to health or the environment.” 15 U.S.C. § 2605(a). Section 6 requires EPA to promulgate rules that “protect adequately,” yet use the “least burdensome” regulatory option. Further, section 6 limits EPA’s authority to promulgate regulations when a risk of injury could be addressed under another statute administered by EPA, unless concerns of “public interest” outweigh regulation under a separate statute.

Third, judicial decisions have stymied TSCA’s impact. In Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991), the court vacated EPA’s asbestos ban rule, finding that the agency failed to consider less burdensome alternatives to placing a complete ban on asbestos. Id. at 1229–30. The decision took the wind out of EPA’s sails. Seemingly, the lesson for the agency was that “if ten years and thousands of pages of documentation were inadequate to ban asbestos,” section 6 was unenforceable. Franklin, supra at 2.

These setbacks have prompted the development of a patchwork of state-based statutory regimes that provide regulatory uncertainty for industry and a lack of oversight for consumers. According to the National Conference of State Legislatures’ environmental health legislation database, at least 606 bills involving toxics and chemicals were filed, or refiled, in 2014, with 92 enacted or adopted. In 2013, nearly 400 bills on the same topic were filed.

Time to Fix the Outdated Law?

The 114th Congress marks a time of significant change. For the first time during his presidency, President Obama faces a divided government, with both houses of Congress under Republican control. While significant disagreement on a myriad of policy topics remains, the President has made clear his intention to work across the aisle to address areas of shared interest. See Kathleen Hunter, McConnell Says He and Obama Discussed Working on Trade, Taxes, BusinessWeek (Nov. 5, 2014).

TSCA reform remains an area of underreported, yet increasingly likely, potential bipartisan collaboration. For good reason, during the 113th Congress, TSCA modernization bills with bipartisan support were introduced in both the U.S. House of Representatives and the U.S. Senate and were meant to reform the law. This article will generally describe the various components of the bills and contrast the competing reform approaches. As comprehensive reform acts, however, it is difficult to describe in detail every nuanced alternation to the law. Beginning with a brief synopsis of legislative history, this article will describe several major changes proposed in the various bills and highlight points of conflict between the chambers.

The clarion call for reform was answered by the Obama Administration in 2009, with former EPA Administrator Lisa Jackson announcing six essential principles for reform and that the agency would reevaluate TSCA’s language and consider reinterpreting its authority to strengthen federal regulation. Congressional response was quick. In the Senate, longtime chemical reform advocate Senator Frank R. Lautenberg (D-NJ), who is now deceased, introduced a comprehensive bill to overhaul TSCA, the Safe Chemicals Act of 2011. The next year, the Senate Environment and Public Works (EPW) voted to approve an amended version of the overhaul bill. Reform, however, stalled before the full Senate.

In April 2013, Senator Lautenberg and Senator Kirsten Gillibrand (D-NY) introduced the Safe Chemicals Act of 2013—the same bill approved by EPW, with twenty-seven additional cosponsors. Then, the plot thickened. The next month, seemingly abandoning his prior bill, Senator Lautenberg and Senator David Vitter (R-LA) introduced the bipartisan Chemical Safety Improvement Act (CSIA). When it was introduced the bill had twenty-six cosponsors, evenly representing both parties, and appeared to be a major breakthrough for comprehensive reform.

The CSIA “would mandate that EPA determine, on a prioritized basis, whether chemical substances meet a safety standard under the intended conditions of use.” Bipartisan TSCA Modernization Bill, Chemical Safety Improvement Act, Introduced in Senate, Beveridge & Diamond (May 24, 2013); CSIA § 4. Once EPA determines that the chemical does not meet the safety standard, the agency is required to regulate.

The core of the CSIA is a prioritization mechanism that requires chemicals to be classified as either a high or low priority. Only chemical substances determined to be high-priority continue on to safety assessment and determinations. As Daniel Rosenberg of Natural Resources Defense Council (NRDC) clarifies, colloquially, this notion of prioritization is that “you would prioritize fixing a hole in your roof before tightening that loose door knob.” Daniel Rosenberg, The Chemicals in Commerce Act is A(nother) TSCA Bill Only Industry Could Love, SWiTCHBOARD (Mar. 11, 2014). EPA would be required to conduct a safety assessment and then a safety determination of each high-priority substance. The safety assessment would be based solely on considerations of risks to health and the environment. CSIA § 6. Next, EPA would make a safety determination, deciding whether the chemical meets the safety standard under the intended conditions of use, considering a variety of factors like the range of exposure.

A significant change from existing requirements, CSIA would permit EPA to look beyond the “least burdensome option” in TSCA Section 6. The bill would require safety determinations to be made for existing chemicals based on “risk,” CSIA § 6, but the legislative language strays away from requiring the “least burdensome” option.

The focus on risk is a pervasive aspect of the bill. For example, in section 5, EPA is directed to apply the same test to a new chemical before it is allowed on the market. This is one of the bill’s major selling points—that it imposes a safety screen of some kind on new chemicals for the first time. There is concern, however, that a thorough reading of the bill will skew the cost-benefit analysis toward economic concerns. See Liz Hitchcock Testimony on CSIA, Hearing on S.1009 Before Subcomm. Envt. and Econ. of the H. Energy & Commerce Comm., 113th Cong. (2013).

Finally, CSIA Section 15 significantly expands federal preemption of state regulations. For example, EPA’s testing requirements would preempt state and local testing requirements and prohibit states from imposing new restrictions on the manufacture, processing, and distribution of chemical substances that would be covered by section 6’s risk management assessment. While the bill garnered significant support, this provision drew the ire of Senator Barbara Boxer (D-CA)—the then Chair of the Senate EPW. During a hearing in 2013 before EPW, Senator Boxer noted that, “When people in our states vote for very specific protections from harmful toxins, their rights must not be preempted.” See Barbara Boxer Statement, “Strengthening Public Health Protections by Addressing Toxic Chemical Threats,” Hearing on S. 1009 Before S. Envt & Pub. Works Comm., 113th Cong. (2013).

While the Senate debated the bipartisan CSIA, members of the House of Representatives prepared to introduce their own version of TSCA reform. After holding a series of hearings on TSCA reform, Rep. John Shimkus (R-IL) introduced his proposal to reform TSCA, the “Chemicals in Commerce Act” (CICA). Significantly, CICA mirrors the two-tiered priority system from CSIA, but attempts to mute the preemption concerns of some members by permitting state measures to remain in force until EPA renders a final determination on each chemical.

The CICA, however, had its critics. The Environmental Defense Fund (EDF), in particular, highlighted two supposed defects in the bill, namely state preemption and additional bureaucratic hurdles delaying EPA action. As described by EDF Senior Scientist Richard Denison, the increased administrative requirements present an “even more onerous and paralyzing” regime than the current law. Richard Denison, House TSCA reform discussion draft: Major problem #1—EPA regulatory hoops, EDF Health (Mar. 4, 2014).

Additionally, in April 2014, a coalition of thirteen state Attorneys General expressed their opposition to CICA—particularly focusing on the issue of preemption. As discussed, CICA provides that state regulation would remain in place until EPA renders a final determination on each chemical substance. At that point, EPA’s decision would preempt the state. This means that states would be unable to regulate chemicals designated by EPA as low-priority, even when the agency takes no further action to regulate. See Letter to John Shimkus from the Attorneys General of New York, California, Connecticut, Hawaii, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, Oregon, Vermont and Washington (Apr. 17, 2014).

House Democrats introduced changes to the CICA, without achieving the same bipartisan consensus as the Senate’s version. In contrast, CSIA began to receive additional support. In a letter, a bipartisan group of state Attorneys General voiced their support for the bill, noting that, “The preemption provisions in CSIA only impact State chemical regulations that regulate specific chemicals and that directly relate to chemical manufacturing, processing, or use. Furthermore, the CSIA gives States direct routes to participate in the process of identifying and evaluating chemical safety, including requests to prioritize specific chemicals and to re-prioritize a chemical based on new information.” Letter to Barbara Boxer and David Vitter from the Attorneys General of Alabama, Alaska, Arizona, Arkansas, Georgia, Michigan, North Dakota, Ohio, South Carolina and Utah (May 29, 2014).

Finally, dissatisfied with CSIA as drafted, Senator Boxer released her own reform package. Her decision to do so eliminated hope that a bipartisan reform package would be reached during the 113th Congress. See Sen. Boxer releases new TSCA proposal; reform unlikely to pass this Congress, Green Chem. L. Report (Sept. 19, 2014). In particular, her draft critiqued CSIA for requiring “EPA to initially list only 10 chemicals as ‘high priority’—the designation that triggers a safety review—and to label more chemicals as high priority only as reviews of those 10 are completed.” Sen. Barbara Boxer, Critique of the Vitter TSCA proposal. Moreover, Senator Boxer criticized the draft because “the standard for labeling a chemical as low-priority is ambiguous and weak, especially compared with all the structures the draft puts in place to regulate a chemical. Most important, low-priority designations cannot be challenged in court, under the draft.” Id. For Senator Boxer, the delayed designation of chemicals in addition to a lack of judicial review for low-priority designations creates a regulatory scheme that neither speeds up review of chemicals nor provides the public the opportunity to ensure dangerous chemicals are properly labeled. In this way, the draft bill in Senator Boxer’s view fails to “provide greater protection of public health and safety.” Id.

Thus, we are left with a panoply of competing reform packages in both the House and the Senate. In the Senate, there were two versions of CSIA—the Udall-Vitter proposal (Senator Tom Udall (D-NM) replaced Senator Lautenberg’s after his untimely death) that provides for comprehensive TSCA reform and Senator Boxer’s redlined counterproposal that raises significant issues, including state preemption. In the House, the parties continued to negotiate Representative Shimkus’ CICA, without significant compromise. See House Democrats’ negotiating language on TSCA reform: user fees and tighter deadlines, Green Chem. L. Report (June 4, 2014).

Outlook for Reform: A Moment Lost or Hope for Consensus?

The outlook for comprehensive reform in the 114th is—tepidly—optimistic. There is hope that the 114th Congress will find bipartisan, common ground. Several new developments have affected this likelihood. With the Senate flipping to Republican control, interest remains on both sides of the aisle to finalize necessary reform. As of January 2015, legislators in both houses remain interested in TSCA reform. And, the chance for bipartisan reform remains plausible.

In the Senate, incoming EPW Committee Chair Sen. James Inhofe (R-OK) noted that CSIA is a “good starting point” and “a high priority” for the Committee. An early look at TSCA reform prospects in the 114th Congress, Green Chem. L. Report (Jan. 12, 2015). More importantly, he is known to have a collegial relationship with Senator Boxer. Id. Since announcing her decision not to seek reelection in 2016, the 114th Congress has become the last opportunity for Senator Boxer to add another milestone environmental achievement to her storied career. Finally, Senator Tom Udall appears to be rallying support for a new version of CSIA, and he is known to be “uniquely positioned to garner the support of more lawmakers.” Id.

In the House, Representative Shimkus has made clear that he is “hopeful” about attracting bipartisan support for CICA. Id. While his bill failed to garner Democratic support previously, with increased Republican control of the chamber, it is unlikely that much Democratic support is necessary to pass a bill and move on toward a conference committee with a bipartisan proposal in the Senate.

In fact, the chance for reform is more realistic now than in recent memory. Barely two years ago, Charles Franklin and Allison Reynolds lamented, after years of “House and Senate Committee hearings, multiple draft bills, numerous professional conferences, stakeholder meetings, position papers, and resolutions (including a resolution by the American Bar Association), the parties seem no closer to consensus on a draft bill than when President Obama entered office.” Charles Franklin & Allison Reynolds, TSCA Reform and Preemption: A Walk on the Third Rail, 27 NR&E 1, 4 (Summer 2012). Today, the CSIA and CICA have bipartisan supporters and, while substantive disagreements remain, overall the bills appear to present viable frameworks for reform. Significant overlap exists between the two proposals. For example, both bills promote a prioritization scheme as a trigger for additional requirements. This is a good starting point for reform.

To achieve bipartisan reform, the legislative packages must also address the third rail of TSCA, state preemption. See Franklin & Reynolds, supra at 1. TSCA’s current preemption language, as interpreted by the courts, has provided little limitation to growth of state restrictions and labeling and testing requirements. See, e.g., Chesapeake v. Sutton Enterprises, Inc., 138 F.R.D. 468, 477 (E.D. Va. 1990) (“The statutory scheme starts with the premise that no state regulation is preempted until the Administrator promulgates a rule governing that substance.”); Rollins Envtl. Services (FS), Inc. v. Parish of St. James, 775 F.2d 627, 633 (5th Cir. 1985) (“State law is preempted only when EPA has issued a rule under…[TSCA]. If EPA has not acted, the States are free to act.”).

While the belief that “State level action will in turn pressure Congress to address growing concern and fractured state-by-state regulations,” Kristen Ekey, Note, Tick Toxic: The Failure to Clean up TSCA Poisons Public Health and Threatens Chemical Innovation, 38 Wm. & Mary Envtl. L. & Pol’y Rev. 169, 188 (2013), protecting state laws like California’s Green Chemistry initiative from preemption will be a roadblock to bipartisan agreement. One merely has to look to the vigor of Senator Boxer’s criticism of CSIA and her decision to introduce a separate package as evidence of the work needed to find common ground.

The draft bills address state preemption very differently, with Senator Boxer’s proposal seeking not only to strike the CSIA’s provisions regarding preemption, but also to unravel TSCA’s current, limited preemption provisions. See Press Release, Senator Boxer’s Statement on Current TSCA Reform Efforts (Sept. 18, 2014) (“under the Vitter proposal states face sweeping preemption even when there is no meaningful action by the federal government.”).

Even with Republican control of both the House and the Senate, passage of a veto-proof bill will require bipartisan support. And, the President has not shied away from invoking veto threats. See Steven Benen, Obama keeps his veto pen handy, MSNBC (Jan. 21, 2015). Protecting state’s rights to regulate toxic chemicals has been a focal point for Democratic members, with their Republican counterparts seeking a federal standard. See, e.g., U.S. House of Representatives, Committee on Government Reform—Minority Staff, Special Investigations Division, Congressional Preemption of State Laws and Regulations, prepared for Rep. Henry A. Waxman (June 2006). Until this issue can be addressed, reform is unlikely. In the fictionalized television drama The West Wing, President Jed Bartlett expressed trepidation in taking on hot button issues with his Communications Director Toby Ziegler. The exchange resonates today for its clairvoyance. To take some inspiration,

PRESIDENT BARTLET

[state preemption of TSCA] is the third rail of American politics. Touch it, and you die.

TOBY

That’s cause the third rail is where all the power is.

The West Wing: Slow News Day (Warner Bros. Television Feb. 4, 2004).

Finding a way to preserve state and local authority to protect health and the environment without “bring[ing] both interstate commerce and environmental protection efforts to a grinding halt,” Franklin & Reynolds, supra at 1, is one of the largest hurdles facing bipartisan reform.

Nearly forty years since its passage, the overwhelming consensus of the public and private sector is that TSCA needs reform. As the President’s Cancer Panel boldly claimed, TSCA may represent “the most egregious example of ineffective regulation of environmental contaminants.” President’s Cancer Panel, U.S. Dept. of Health and Human Serv., 2008–2009 Ann. Rep., Reducing Envtl. Cancer Risk: What We Can Do Now 54 (2010).

Looking forward, there is hope that a bipartisan reform package can help TSCA achieve its admirable goal of preventing unreasonable risks of injury to health or the environment from chemical substances. Compromise is necessary to address longstanding impasses, such as preemption, but doing so will produce a bill that Democrats and Republicans can support. Members of both parties can achieve the remarkable feat of compromise; in fact, they are much closer now than they have been before.

Sean J. Wright

Mr. Wright serves as a policy analyst for Legal Progress, the legal policy program at Center for American Progress in Washington, D.C.