House and Senate negotiators are continuing to hash out final details of legislation to update the nation’s chemicals law, including an unresolved dispute over how the proposal would address some of the most significant known hazards.
But even though the finish line appears close, high-profile divisions are emerging. Yesterday, Rep. Frank Pallone (D-N.J.), ranking member of the House Energy and Commerce Committee, defended his decision to oppose the emerging compromise.
The question of how to treat substances on U.S. EPA’s so-called Work Plan Chemicals list is among the final unresolved aspects of the negotiations to update the Toxic Substances Control Act.
Lawmakers are working to reconcile two bills, S. 697, known as the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," and H.R. 2576, dubbed the "TSCA Modernization Act."
A source provided E&E Daily with a copy of the bill circulating among interested parties. House and Senate aides did not confirm whether the text had changed.
EPA started its Work Plan Chemicals program in 2012 in a bid to make the most of its existing authorities under the Toxic Substances Control Act of 1976, even as it pushed for changes to the law.
The program completed five chemical assessments of substances like flame retardants, paint strippers and dry cleaning solvents. Another review is forthcoming. Six are pending. And dozens more are on the waiting list.
Under compromise language, EPA would have to give states waivers allowing them to continue enforcing a statute or administrative action under certain conditions. In other words, the agency would not be able to push states aside.
However, the state’s waiver request would have to come within 18 months of EPA’s designation of a chemical as high or low priority, or when EPA publishes the scope of a risk assessment for a chemical, whichever happens first.
In addition, the legislation would require EPA to begin risk evaluations on at least 10 chemicals from the Work Plan Chemicals program within 180 days.
The agency would be able to select the chemicals that are already the furthest along. But because the agency has already published documents for those substances, the clock would start ticking earlier, and states would already be out of time to forge their own path, advocates said.
A Senate aide said the compromise legislation continued a focus on getting EPA to complete reviews of the chemicals faster.
"The only reason it’s early pre-emption [of states] is because we’re expediting them through the process so [the chemicals] get regulated faster," the aide said, referring to the Work Plan Chemicals.
A source involved in the negotiations said states had expressed concern about the provision blocking them from acting on Work Plan Chemicals pending EPA review, including Democratic Sen. Ed Markey’s home state of Massachusetts, and that the pause was still under discussion.
A separate Democratic aide from the Environment and Public Works Committee said, "Every effort has been made from the start of discussions to remove the pause. We are hopeful additional improvements can be made."
Andy Igrejas, director of the group Safer Chemicals, Healthy Families, said the policy stems from what he sees as the Senate bill’s tilt in favor of the chemical industry.
"We appreciate that it helps that Senator Boxer got this grace period," Igrejas said, "but it actually doesn’t apply to the Work Plan Chemicals, whether EPA picks them or whether the industry requests the assessment of them."
EPA has selected certain chemicals as part of an effort to maximize existing resources, Igrejas said, underscoring the need to allow all options to protect the public from exposure.
The substances are "some of the worst ones out there," Igrejas said. "They’re also the ones that states just acted on or other states are about to act on."
He added: "It’s what allows us to really be able to say with confidence the bill will expose people to toxic chemicals that otherwise would not be exposed to toxic chemicals, because these policies would be suspended."
Top Democrats divided
Pallone yesterday disputed reports that he wanted to deny Sen. Cory Booker (D-N.J.) credit for protecting animals from chemical testing (E&ENews PM, May 17).
"As far as I know, the animal testing issue is largely resolved," Pallone told E&E Daily, "and we were all of the opinion that animal testing should only be as a last resort, so I don’t understand what the issue is."
Pallone said his concerns about the plan had to do with how it would affect state laws.
"The problem is that the Republicans have made this bill, from what I understand, the sort of draft that they’re proposing is weaker than the current law," Pallone said. "So there wouldn’t be any point in having it."
Rep. Paul Tonko (D-N.Y.) is also opposed to the emerging compromise.
But two other high-ranking Democrats on the Energy and Commerce Committee spurned Pallone and Tonko’s position yesterday.
In a joint statement, Reps. Diana DeGette of Colorado and Gene Green of Texas rejected the contention that the legislation was worse than current law.
Green is ranking member of the Subcommittee on Health and Oversight, while DeGette is the top Democrat on the Subcommittee on Investigations.
"Right now, we are closer than ever before to making reform a reality," the lawmakers said. "The proposal released yesterday is a clear improvement over current law and addresses the fundamental flaws of TSCA that expose the public to dangerous chemicals.
"It is long past time that Congress update this law, and we stand ready to work toward a final compromise that will have broad, bicameral support."
Reporter George Cahlink contributed.