P.L. 114-182: Toxic Substances Control Act (TSCA) Amendments

P.L. 114-182: Toxic Substances Control Act (TSCA) Amendments

On June 22, 2016, President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (P.L. 114-182). The act primarily amends Title I of the Toxic Substances Control Act (TSCA; 15 U.S.C. 2601-2629) but also amends other existing law with regard to the long-term management and storage of elemental mercury, the federal authority to investigate potential cancer clusters, and the eligibility of skilled nursing facilities in rural communities for telecommunications services program funding. Previously, the Executive Office of the President published a statement of Administration policy stating that it strongly supported the legislation being considered in Congress that would amend TSCA.

Congress enacted TSCA in 1976. Until this year, Congress had not significantly amended TSCA Title I, which authorizes the U.S. Environmental Protection Agency (EPA) to identify and, if necessary, regulate commercial chemicals if elements of a chemical's lifecycle (i.e., from manufacture including importation to disposal) are found to present unreasonable risks and are generally not regulated under another federal authority. Over decades, stakeholders (including chemical manufacturers, processors, distributors, other industry sectors, and public health and environmental organizations) increasingly voiced concerns regarding various issues with TSCA that, they argued, warranted amending the act to improve its implementation and function.

In summary, P.L. 114-182 amends TSCA Title I to

expand EPA authority to require testing of chemicals under TSCA Section 4;

require (compared to current discretionary authority for) EPA to review new chemicals or significant new uses of chemicals under TSCA Section 5;

require (compared to current discretionary authority for) EPA to prioritize chemicals for risk evaluation and evaluate risks of high-priority chemicals under TSCA Section 6;

remove cost or other "nonrisk" factors from the evaluation of "unreasonable risk" (which had been interpreted at the circuit court level as a multi-factor balancing test);

require EPA to regulate chemicals found to present unreasonable risks so that they no longer present such risks (compared to promulgating the least burdensome requirement, as has been required) under TSCA Section 6;

require EPA to determine which chemicals covered by the act are active in commerce under TSCA Section 8;

provide additional procedures and standards under TSCA Section 14 for confidential treatment or disclosure of certain information submitted to EPA under TSCA;

establish additional conditions in which TSCA requirements would or would not preempt state chemical regulatory requirements under TSCA Section 18 (see CRS Report R44066, Preemption in Proposed Amendments to the Toxic Substances Control Act (TSCA): Side-by-Side Analysis of S. 697 and H.R. 2576, by [author name scrubbed]); and

expand EPA authority to collect fees from chemical manufacturers and processors and require EPA to deposit the collected fees in a newly established TSCA Service Fee Fund under TSCA Section 26.

Additionally, P.L. 114-182 amends Section 5 of the Mercury Export Ban Act of 2008 (42 U.S.C. 6939f) to require the Department of Energy to make operational a facility that would accept elemental mercury generated within the United States and for other related purposes. It also adds new Section 399V-6 to the Public Health Service Act (42 U.S.C. Chapter 6A) to authorize a greater federal role in addressing potential cancer clusters. Section 254 of the Communications Act of 1934 (47 U.S.C. 254) is amended to make skilled nursing facilities eligible under the Universal Service Fund Rural Health Care Program for telecommunications services and funding. (This provision was previously introduced as S. 1916 and H.R. 4111.)

Whether P.L. 114-182 substantively changes how EPA evaluates and regulates chemicals may depend on its implementation decisions and the resources available to implement the legislation. P.L. 114-182 does not provide new appropriations authority or mandatory appropriations to implement TSCA. Resources to implement the act, including EPA authority to use collected fees, are subject to the annual discretionary appropriations process.

Legislative Developments Prior to Passage

Previously, on June 23, 2015, the House passed H.R. 2576, the TSCA Modernization Act of 2015, which was reported by the House Committee on Energy and Commerce (H.Rept. 114-176). On December 17, 2015, the Senate passed a substitute amendment (S.Amdt. 2932) to H.R. 2576. The Senate substitute amendment was based on S. 697, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which was reported by the Senate Committee on Environment and Public Works (S.Rept. 114-67). On May 24, 2016, the House agreed to a substantially revised House amendment to the Senate amendment to H.R. 2576 by a vote of 403-12 (Congressional Record, H3046-H3047). On June 7, 2016, the Senate concurred in the same legislation by voice vote (Congressional Record, S3523). P.L. 114-182 is the result of several months of negotiations between the House and the Senate after each chamber had taken action on its own version of TSCA amendment legislation.

Differences between the original House-passed H.R. 2576 and Senate-passed amendment are discussed in CRS Report R44434, Proposed Amendments to the Toxic Substances Control Act (TSCA) in the 114th Congress: H.R. 2576 Compared with the Senate Substitute Amendment, by [author name scrubbed] and [author name scrubbed]. The CRS report also provides a side-by-side comparison between the House-passed H.R. 2576 and the Senate-passed amendment.