Senate passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) last week is a historic moment in U.S. environmental law. But a great deal of work remains to be done before the objective of the bill—comprehensive reform of the outdated and widely ineffective Toxic Substances Control Act (TSCA)—is complete. Most importantly, S. 697 must be reconciled with the TSCA Modernization Act of 2015 (H.R. 2576), which was passed by the House in June 2015
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It is difficult to find anyone involved in industry, government, or environmental advocacy who opposes reforming TSCA, and provisions in both bills take similar approaches to that reform. For example, both bills would remove the shackles that have made it virtually impossible for the EPA to take action against existing chemicals that endanger public health. Both bills would install a safety-only analysis in place of the onerous cost-benefit analysis the EPA must undertake before regulating a chemical in commerce. The bills would also require that the Agency give special attention in its assessments to the effects chemicals have on children and other vulnerable subpopulations. The existing TSCA has no provision requiring consideration of any chemical’s impact on the most vulnerable groups.
The differences between the bills can be found in areas such as which chemicals the EPA must review; how federal actions on a chemical will preempt the ability of states to also act on the chemical; when waivers may be applied to that federal preemption; the extent of EPA’s authority to order companies to conduct tests; and the manner in which companies request that the EPA conduct reviews of chemicals.