Saturday, May 21, 2016

Rules Committee to Meet on HR 2576 – TSCA Revision

The House Rules Committee will meet Monday evening to formulate the rule for consideration of a House amendment to the Senate amendment to HR 2576, TSCA Modernization Act of 2015. This amendment is the bicameral, bipartisan compromise language that the press has been reporting on this week.


This 181-page substitute language is a very complex amendment of the current Toxic Substances Control Act (15 USC 2601-2609) that combines language from the versions passed in the House and Senate versions plus some other changes worked out by an unofficial conference group of Senators and Representatives (and the appropriate staff members).

The House Energy and Commerce Committee has published a four-page summary of the compromise language.

Moving Forward

Since this is compromise language that took a great deal of effort to work out, I do not suspect that the rule for the consideration of this bill will provide for much, if anything, in the way of amendments. No one is going to be completely satisfied with the language of this bill. Sen. Sanders (I,VT), for example, has come out against the revised language. Industry groups (see here and here) however, are apparently taking a more pragmatic stance and are generally supporting the language.


The existing TSCA regulations are complex enough, but the amendments in this bill are going to make it even more so. The big problem is the amendment process. Congressional bills do not generally show the revised language; they show the changes that are to be made. For example, one of the many changes (in this case to 15 USC 2605) in this bill reads {§6(2)}:

“(2) in subsection (a)—
“(A) by striking ‘‘finds that there is a reasonable basis to conclude’’ and inserting ‘‘determines in accordance with subsection (b)(4)(A)’’;
(B) by inserting ‘‘and subject to section 18, and in accordance with subsection (c)(2),’’ after ‘‘shall by rule’’;
(C) by striking ‘‘to protect adequately against such risk using the least burdensome requirements’’ and inserting ‘‘so that the chemical substance or mixture no longer presents such risk’’;

This in a more conventional business format would read:

“(a)If the Administrator finds that there is a reasonable basis to conclude determines in accordance with subsection (b)(4)(A) that the manufacture, processing, distribution in commerce, use, or disposal of a chemical substance or mixture, or that any combination of such activities, presents or will present an unreasonable risk of injury to health or the environment, the Administrator shall by rule and subject to section 18, and in accordance with subsection (c)(2), apply one or more of the following requirements to such substance or mixture to the extent necessary to protect adequately against such risk using the least burdensome requirements so that the chemical substance or mixture no longer presents such risk:”

This is certainly easier to read, but the full effect is still not clear because the references to other sections of TSCA (which are also amended) have to be read and understood before the actual import of the changes made to this paragraph can be understood.

In addition, many of the changes made in this revised language (and both of the other versions of the bill) are apparently minor wording changes that may only be of specific interest to lawyers arguing obscure provisions of the law. For example, a very common change made throughout the bill is the simple substitution of the word ‘information’ for the word ‘data’. While the two words have significantly different common definitions, you would have to read and analyze each instance of this change to understand the regulatory implications.

All of this makes it very difficult to conduct a real review. Even where wholesale changes have been made to the language, it is difficult to accurately assess their implication for chemical manufacturing and chemical safety because of all of the minor changes that are made in the supporting language.

Looking at the Committee summary of this revised language it certainly seems that this bill should be an improvement over the current TSCA language. A closer look, however, shows some significant problems that are glossed over in the revision.

For example, the new requirement for the EPA to make a decision within 90 days of the submission of a pre-manufacturing notice (PMN) for a new chemical as to whether or not there is a potential safety issue with the chemical that needs to be regulated. An effective review of the large number of new chemicals developed every year within that time frame is going to require a large number of new chemical safety experts at the EPA. There are no indications that Congress will fund such a staffing increase.

Another area of potential concern is the requirements for industry funding of research on new chemicals. This has always been a sticking point for the development of chemical safety information; such testing is important yet expensive. Chemical safety advocates are certainly heartened to see industry being stuck with the bill for large portions of this testing. In order to avoid stifling chemical innovation too much there are limits to how much a company can be forced to spend on such testing depending on the size of the organization. Small companies are responsible for a disproportionate share of the innovation in the chemical industry. This safety-testing funding proposal will almost certainly have an impact on the merger and acquisition process as larger companies will wait for the testing requirements on a new chemical to run out.

It certainly looks like this bill is going to pass and that is probably a good thing. But it is going to take years to see what the actual impacts on the chemical industry will be.

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