Friday, January 21, 2011

The (Un?)Likelihood of TSCA Chemical Reform?

Reform of the ancient (in regulatory terms) Toxic Substances Control Act seemed to be finally on the front burner during 2010.  After years of promising, the Democratic-led House and Senate each introduced bills. The House, led by Energy and Commerce Committee Chair Henry Waxman and subcommittee chair Bobby Rush, even held a series of meetings with stakeholders.  This in addition to several public hearings on both the House and Senate side.

And then came the election.

The question now is a matter of priority.  With the Republican party gaining control of the House, Representative Waxman is no longer chair (he becomes ranking member).  Instead the committee, which has a broad oversight mandate, is being chaired by Republican Representative Fred Upton who has stated that he will focus on repealing the health care law passed in the last Congress (a vote was held this week), "fighting rampant regulations," and reducing spending, including that of the EPA.

In short, no one seems to know at this point whether the committee will get around to addressing TSCA reform, or for that matter, whether TSCA reform bills will even be reintroduced.  On the Senate side the Democrats still have control and thus still chair the various committees.  Long-time TSCA reform champion Senator Frank Lautenberg has stressed that he plans to reintroduce his "Safe Chemicals Act," but he didn't provide a timetable.  Even if he does there would need to be a bill introduced on the House side, and right now it is not a very high priority for Representative Upton or Speaker Boehner.  So we will have to wait.

While that happens the NGOs have redoubled their efforts to push TSCA reform legislation, and barring action on the federal level are pursuing state level actions.  But as a commenter on my post yesterday pointed out, the past election resulted in strong conservative gains in many state legislatures, which along with  continuing fiscal uncertainty, is likely to limit the ability of states to pick up the slack.  Meanwhile, the message coming from industry has generally been that they prefer federal level modernization of TSCA rather than a patchwork of state regulations, either on individual chemicals (including bans) or as "TSCA Reform Lite."  And while some parts of industry, e.g., larger companies, may be comfortable with greater health and safety disclosure since they may have already compiled the data for REACH, other parts of industry argue that they are less capable of handling extensive data submission demands on, e.g., lower volume chemicals.  These special "small and medium sized entities" issues were addressed to some extent in the legislation proposed in 2010, but it remains unclear what form any new legislation may take.  In short, there are a lot of issues still to be worked out should Congress decide to move forward.

I would not expect any activity on TSCA before summer or even fall, and after that the dynamics of a presidential election year may distract members of Congress from issues like TSCA reform.  So we will have to wait and see. 

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