TSCA Modernization Act of 2015

Floor Speech

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Mr. TONKO. Mr. Speaker, I thank the gentleman from New Jersey, our ranking member, for yielding.

It is with regret that I must stand here today in opposition to this bill to reform the Toxic Substances Control Act. We have negotiated in good faith for many months to try to reach an agreement to fix EPA's chemical program. While there are some positive aspects of this bill, ultimately, I believe it falls short.

Before I go into detail about my concerns, I want to express my appreciation for the work that has been done by both the majority and minority colleagues on the Energy and Commerce Committee. I want to commend the staffs, in particular those with whom I worked most closely from the minority side.

As we just heard from Chairman Upton, the Senate passed a version in December of last year, after we had voted nearly unanimously to support our version of the bill. There are improvements over the bill passed by the Senate in December with this measure.

I want to be clear that, in some ways, this bill will improve current law: EPA gains new authorities and resources; the regulatory bar to testing is lowered, allowing EPA to acquire more information about chemicals; the least burdensome standard that essentially has prevented EPA from regulating chemicals even when there was overwhelming evidence of harm has been removed; one of our Caucus' top priorities, expediting the review of persistent, bioaccumulative, and toxic substances, or PBTs, was largely retained; and the bill requires the EPA to consider the most vulnerable populations.

But for every positive step to protect public health and the environment, there are numerous steps back that undermine those goals. For example, this bill weakens one of the few parts of TSCA as it stands today that actually works, Significant New Use Rules, or SNURs.

EPA can require companies to provide notice of new uses of a chemical before a company can manufacture or import it. A chemical that might be suitable for industrial uses should not necessarily be in consumer products. This bill would make it more difficult to require notification and, therefore, to track chemicals being used in new ways or in imported products.

Also, there is language on a negotiated rulemaking to limit reporting requirements for inorganic byproducts, a concept that was not in either the House or Senate bills but seems to have been stuck into this version somehow.

The section on nomenclature represents an improvement over the Senate bill, but I still have concerns. This is just one of a number of seemingly benign provisions that are included to create loopholes that undermine the public health and environmental protection goals of TSCA.

The bill retains the Senate's resource-intensive prioritization process that largely duplicates the work EPA has done already to identify chemicals of concern and place them on the work plan.

Finally, there has been a lot of talk about the preemption section. Currently, States are able to restrict a chemical unless EPA decides to impose its own restrictions. Preemption has not often been an issue because EPA has rarely acted, but States today--today--have a number of options when it does happen. They can coenforce restrictions, apply for a waiver, or ban the chemical. Under this bill, States lose those rights to ban a chemical, and a waiver would be more difficult to obtain than under current law.

Without a working Federal program, it has fallen upon States to lead the fight to get the most harmful chemicals out of commerce, and they have proven to be successful. They have been the champions, the driving force.

I understand there are Members from States that have not acted to regulate chemicals. Please do not think this provision does not apply to you as well. When States are able to act aggressively, as they have, they can move industry and they can move EPA to act, which benefits our entire Nation.

Unfortunately, this bill includes provisions that would severely inhibit States' ability to act. In January, 14 State attorneys general expressed their concerns with the preemption section. Those concerns were reiterated as recently as last week by some seven State environmental commissioners. Their concerns largely revolved around what has become known as pause preemption. During the pause period when EPA is evaluating a chemical, up to 3.5 years, States are prohibited from acting.

Last year's House-passed version did not--did not--include the pause. While we accepted that States would be preempted when EPA makes a final determination about a chemical's risks, it would be unprecedented to prevent a State from acting before then.

Overall, and very problematically, the Senate's State preemption framework is largely unchanged. We know a deal was struck in the Senate a few weeks ago, but I believe it is more accurate to call it a deal on prioritization, not preemption, because EPA would have to spend more time going through the unnecessary prioritization process. During this new window of time, States could rush to try to act before the pause kicks in.

We have heard from a number of States that act by legislative action rather than regulations. They have told us that 12 to 18 months is simply not sufficient. The reality is, in most cases, States will not have enough opportunity to protect their citizens from harmful chemicals during the years it can take for EPA to do its own evaluation.

Let us call the pause exactly what it is: unnecessary and precedent setting. It may be decades before we see the health benefits of this bill, but I fear it is only a matter of time before more and more bills come to the floor that prevent State regulation before a final Federal agency action. I can't help but ask: Will we rue the day that we gave a nod of approval to the pause preemption concept?

It is a terrible policy, and we should not encourage it. It opens the door to unwelcome and dangerous precedent.

The core tension of my evaluation of this bill is to balance between new Federal authorities and new restrictions on States. On balance, I do not believe that the modest improvements to the Federal program--not to mention the carve-outs for certain industries, many of which are unnecessarily broad--are sufficiently positive to warrant these new restrictions.

You have heard during this debate that our system is broken and that the improvements, of which there are some, are better than nothing, which is what we have now for existing chemicals. But better than nothing is a very low bar. I think we can and should do better. The public deserves better.

I have no doubt that people on both sides of this debate genuinely want to ensure people are protected from dangerous and toxic chemicals. I do not begrudge my colleagues who choose to support it. However, the Record must reflect that this bill is not without its flaws or its controversies.

We must have a strong, national chemical program to protect American families and workers. But the States can and should be strong partners in this effort. This bill severely constrains the States' role in this effort. Ultimately, I am not convinced that the program that will be put into place by this bill justifies the unprecedented limitations of States' authorities.

Mr. Speaker, I urge my colleagues to oppose the bill.

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