Today, the House Energy and Commerce Committee’s Environment and the Economy Subcommittee held a hearing entitled “Regulation of Existing Chemicals and the Role of Pre-emption Under Section 6 and 18 of the Toxic Substances Control Act.” The subcommittee had a diverse group of witnesses testify before them. The list includes: Mark Greenwood, Principal, Greenwood Environmental Counsel PLLC; William Rawson, Partner, Latham & Watkins, LLP; Lemuel Srolovic, Office of the Attorney General for New York State; Justin Johnson, Vermont Agency for Natural Resources; Jennifer Thomas, Director, Alliance of Automobile Manufacturers; and Linda Reinstein, President/CEO and Co-Founder, Asbestos Disease Awareness Organization.

In his opening statement, subcommittee chairman Rep. John Shimkus (R-Ill) said that “some argue that TSCA is broken because TSCA section 6 has not produced more bans or other limits on chemicals. Others, including some on our panel today, suggest that concern is overstated.” He wanted the hearing to explore such topics of what “unreasonable risk” is and the application of “least burdensome” regulations. He concluded his opening statement by saying that TSCA is all about making interstate commerce in chemicals successful for all. Energy Commerce Chairman Fred Upton posted his opening statement online and it said the hearing “gives us a chance to think through two values that should always guide our policy decisions: respecting the authority of the states and facilitating interstate commerce.” He goes on to make a point that the state and federal government have to find common ground and it is important to have thorough but not excessive regulations.

A major topic of conversation throughout the hearing was the role of and what some considered a failure of TSCA section 6. EPA’s main target for regulation under section 6 was asbestos and it took thirteen years to finally publish a ban and phase-out rule in 1989. The rule was challenged by multiple parties and the court overturned the primary sections of the rule. This led many to believe that it would be very difficult to regulate chemicals under section 6, according to Mark Greenwood’s testimony “some stakeholder groups began to characterize TSCA as a broken statue.” With talks of TSCA reform ongoing, rewriting section 6 has been a primary focus for many involved.

In regards to the “unreasonable risk” standard, William Rawson said in his testimony such a standard is not unique to TSCA. He mentioned FIFRA requires almost the same language for non-food use pesticides. He also mentions Executive Order 13563 which directs EPA and other agencies in their regulation to take into accounts benefits and costs, and make sure that a regulation’s benefits justify its costs.

During the Q&A portion of the hearing Rawson stated that section 6 places the burden on EPA, which is to be expected, but added that industry could help by providing more information and data for the EPA to make a decision on the risk of the chemical. In regards to pre-emption Rawson stated that states have by and large avoided pre-emption so far in the 37 years of the law.

Justin Johnson in his testimony pointed out states concerns with TSCA reform being discussed. He believes the states should not be pre-empted by TSCA revisions beyond those currently in the statute, the safety standard burden of proof “should be less onerous,” states should have access to Confidential Business Information (CBI), and for the EPA to conduct more chemical assessments.

This was the third hearing for the committee examining TSCA. The previous hearings covered Title I of TSCA and TSCA section 5 and 14, which cover regulation of chemicals before they enter commerce and protection of confidential business information respectively.