A discussion draft of a bill to reform the federal Toxic Substances Control Act (TSCA) was released by Rep. John Shimkus (R-IL), chair of the House Environment and the Economy Subcommittee.  The draft Chemicals in Commerce Act (CICA) responds in part to the Senate’s Chemical Safety Improvement Act (CSIA), which was jointly released in May 2013 by the late Senator Frank Lautenberg (D-NJ) and Senator David Vitter (R-LA), ranking member of the Environment and Public Works Committee. 

Both these legislative actions respond to the universal call for a new federal statute that will improve public protection against toxic chemicals while not unduly restricting the ability of industry to provide the public with effective products. However, the CICA contains very controversial provisions concerning federal preemption of chemical restrictions enacted on the state or local level.

Commerce and chemical bill

“This is a commerce bill, not just a chemical safety bill,” Shimkus indicated in a statement.  “The legislation will improve market access to U.S. goods by instilling public confidence in the safety of U.S. products, establishing a new worldwide gold standard for chemical products stamped ‘Made in America.’  The bill will also open pathways for interstate commerce by replacing today’s patchwork of state-by-state chemical regulation with a single market where each chemical is traded under one set of rules.” 

This provision of the bill, called federal preemption, is highly controversial. 

High- and low-priority chems

Shimkus states that the CICA would equip the EPA with the necessary tools and authority to sort existing chemicals in commerce into two categories—high priority and low priority—based on exposure and hazard.  Specifically:

• Chemicals not likely to pose an unreasonable risk of harm to human health or the environment would be designated low priority. That designation would remain unless overturned by a court or revisited by the EPA based on additional information.  
• High-priority chemicals would be subject to rigorous scientific examination by the EPA.  The agency would have authority to require manufacturers and processors to produce information on and, if necessary, test the chemical for its risks.  Based on the information collected, the EPA would then determine whether the chemical would result in an unreasonable risk of harm for its intended use.

Burden on EPA

Before placing restrictions on high-priority chemicals, the EPA would need to expend considerable resources rather than transferring the burden of proof about a product’s safety to industry, a situation that has long been associated with the existing TSCA.  For example, before the EPA could issue a regulation to prohibit use of a high-priority chemical, the CICA would require the Agency to determine that there is a technically and economically feasible alternative that would reduce risk compared to the use proposed to be prohibited. 

Preemption

Also under the draft CICA, states would be empowered to act on their own regarding a chemical only in the absence of federal action.  Once the EPA promulgates a rule regarding a specific chemical, that rule would apply in all 50 states and replace any state or local restrictions or requirement on the same chemical.  Similarly, if the EPA determines that a chemical is not likely to pose an unreasonable risk of harm to human health or the environment, that determination would apply in all 50 states and preempt any state or local restriction. 

Industry has pushed hard for federal preemption provisions in any TSCA reform bill to promote interstate commerce.  But those suspicious of preemption note that the draft bill would preempt state laws and regulations governing a chemical very early in the process the EPA follows to determine if that chemical poses a high risk. 

According to Richard Dennison, who has covered TSCA for the Environmental Defense Fund for many years, the CICA “greedily applies preemption where it suits the industry’s interests.”  For example, says Dennison, the EPA would be required to make low-priority designations but would be denied authority to get information it needs for making such decisions.  “Only 90 days would typically be allowed for EPA to make a decision,” states Dennison.  “Yet any such decision would wholly preempt state and local governments from continuing or initiating action on any chemical deemed low priority.” 

Industry support

This provision in the CICA did not dissuade the American Chemistry Council (ACC) from endorsing the discussion draft.  “The balanced approach taken in the draft Chemicals in Commerce Act will provide Americans with more confidence in the safety of chemicals, while at the same time encouraging innovation, economic growth, and job creation by U.S. manufacturers,” said the ACC.
All stakeholders recognize that the draft CICA represents an early step in the TSCA reform process.  Any amendment sent to the president would need to consolidate House and Senate bills, which may result in a final bill that differs substantially from the documents now being worked on in the two chambers.

Draft CICA