On January 9, 2014, 7,500 gallons of a coal processing chemical, 4-methylcyclohexane methanol, stored in an above-ground tank owned by Freedom Industries leaked into the Elk River just upstream from the local water utility's intake pipe serving Charleston, West Virginia. Regulators banned residents' use of the water for five days. Since the release, concerns have been expressed about the adequacy of information regarding the chemical's safety and health risks, an issue that has been repeatedly raised with respect to chemicals "grandfathered" under TSCA.
The incident has provided a new push for legislative TSCA reform. On January 13, 2014, Representatives Henry Waxman (D-CA), Ranking Member of the U.S. House Energy and Commerce Committee, and Paul Tonko (D-NY), Ranking Member of the U.S. House Energy and Commerce Committee's Subcommittee on the Environment and the Economy, sent a letter to the Subcommittee's Chair John Shimkus (R-IL) urging that he hold a hearing to "examine the regulatory gaps" exposed by the January 9 chemical spill in West Virginia. They assert in the letter that "[a]s [Congress] begin[s] to consider ideas to reform the Toxic Substances Control Act (TSCA), it is critically important that we understand how the law allowed a potentially harmful chemical to remain virtually untested for nearly forty years." A copy of the letter is available online.
On the same day, Lynn L. Bergeson, Managing Partner of Bergeson & Campbell, P.C. and Of Counsel to BRAG, was featured on the National Public Radio (NPR) program "All Things Considered" to discuss the chemical spill. Ms. Bergeson expressed her hope that the incident will spark new interest in TSCA reform. The press release on Ms. Bergeson's comments is available online.
To date, no hearing is scheduled on TSCA reform before the House Energy and Commerce Committee's Subcommittee on Environment and the Economy. The House Transportation and Infrastructure Committee is expected to hold a hearing on the spill sometime soon in Charleston, West Virginia. The Senate Environment and Public Works (EPW) Committee is also expected to hold a hearing on the spill.
Intuitively, entities in the "biobased" space may think the "naturally occurring" substance exemption under the Toxic Substances Control Act (TSCA), the law that governs chemical products in the U.S., applies to their "biobased" materials. The scope of the exemption is limited, however, and complications arise when companies mistakenly assume a material is naturally occurring and therefore exempt from TSCA.
Learn more about this important issue online.
As the new year begins, there are several predictions on the path for reform of TSCA. The vehicle for reform is expected to be S. 1009, the Chemical Safety Improvement Act (CSIA), bi-partisan legislation introduced last year by Senator David Vitter (R-LA), Ranking Member of the Senate Committee on Environment and Public Works (EPW), and the late Senator Frank Lautenberg (D-NJ). Senator Vitter and Senator Tom Udall (D-NM) are now working to move CSIA forward through the legislative process. A Law360 article recently published by Lynn Bergeson contains a detailed discussion of the significance and provisions of this legislation. With 25 bipartisan co-sponsors, CSIA is a "potentially politically viable framework for TSCA reform and renewed hope that badly needed modernization of this ancient law may occur."
Recently, Senator Vitter stated publicly that he expects to be able to move CSIA through the Senate toward passage this year. That task will face challenges. CSIA, or any TSCA reform legislation, will need to first pass the Senate EPW Committee. Its Chair, Senator Barbara Boxer (D-CA), is seeking amendments to limit CSIA's preemptive effect with respect to tougher state chemical laws like California's Proposition 65 and the Safer Consumer Products Regulations.
On December 18, 2013, President Obama announced that he will nominate Senator Max Baucus (D-MT) to be the next Ambassador to China. The nomination is expected to pass quickly and without much opposition. Senator Baucus serves as the Chair of the Senate Committee on Finance, the tax writing Committee. When he leaves the Senate, current Senate Committee on Energy and Natural Resources Chair Ron Wyden (D-OR) is expected to assume the chairmanship.
These moves will impact the fate of incentives for the biofuels and renewable chemicals and products industries, including whether and when the Senate considers a tax extenders package, or tax reform, among other tax policies impacting the industry.
It has been reported that the U.S. House of Representatives Energy and Commerce Committee's Subcommittee on Energy and Power Chair John Shimkus (R-IL) has listed reform of the 1976 Toxic Substances Control Act (TSCA) among his top priorities for 2014. Chair Shimkus has stated publicly that the House is still determining how best to draft and move TSCA reform legislation, but he expects a House TSCA reform bill to be introduced by the spring, with action on it likely next summer.
Chair Shimkus reportedly has also indicated that he expects no action on the Renewable Fuel Standard (RFS) in the House before the U.S. Environmental Protection Agency (EPA) promulgates its 2014 RFS rule. The oil and gas industry has been advocating for legislative action to repeal the RFS in spite of EPA's proposed 2014 RFS rule that would reduce required volume obligations for cellulosic biofuels, as well as advanced biofuels and corn ethanol. The biofuels industry has argued that no legislative action is needed given EPA's regulatory flexibility to modify gallon requirements as needed under the law.
This week, the Biobased and Renewable Products Advocacy Group (BRAG™) participated in the Biotechnology Industry Organization's Pacific Rim Summit on Biotechnology and Bioenergy in San Diego, California. The Summit included over 400 attendees with broad interest and involvement in biofuels and renewable chemicals. During the Summit, BRAG Executive Director Kathleen M. Roberts gave a presentation titled "The Here and Now of TSCA," in which she emphasized the criticality of including regulatory compliance into any company's commercialization plans, and outlined certain sections of the Toxic Substances Control Act (TSCA) applicable to biobased chemical manufacturers. Ms. Roberts highlighted the TSCA Inventory and Chemical Data Reporting (CDR) issues that can catch biobased chemical manufacturers off-guard and potentially lead to six-figure penalties, curtailed production, and/or very non-"Green" warnings and restrictions being required on labels and packaging. Her presentation helped clarify reporting thresholds and what role byproducts play in an entity's TSCA reporting requirements. A copy of the presentation is available online.
On December 4, 2013, EPA published a final rule requiring the electronic submission of certain documents under the Toxic Substances Control Act (TSCA). EPA is promulgating amendments to reporting requirements under TSCA Section 4 (including test rules and Enforceable Consent Agreements (ECA)), TSCA Section 5, TSCA Section 8(a) Preliminary Analysis Information Rule (PAIR) at 40 C.F.R. Part 712, and TSCA Section 8(d) Health and Safety Data Reporting Rules at 40 C.F.R. Part 716. A copy of the rule, including a more detailed description of the new reporting requirements, is available online. The rule will become effective on March 4, 2014.
On Wednesday, November 13, 2013, the House Committee on Energy and Commerce held a hearing on CSIA, a bill to reform TSCA. CSIA was introduced earlier this year by Senator David Vitter (R-LA) and the late Senator Frank Lautenberg (D-NJ). Senator Vitter and Senator Tom Udall (D-NM) are now working to move CSIA forward through the legislative process. A Law360 article recently published by Lynn Bergeson contains a detailed discussion of the significance and provisions of this legislation. With 25 bipartisan co-sponsors, CSIA is a "potentially politically viable framework for TSCA reform and renewed hope that badly needed modernization of this ancient law may occur."
The hearing included three panels of nine witnesses and focused on CSIA and potential reform to TSCA. A detailed memorandum on the hearing issued by B&C is available online.
Senators Vitter and Udall are working to address concerns about CSIA raised during a hearing held in July 2013 before the Senate Committee on Environment and Public Works on TSCA reform. The BRAG report on that hearing may be found online.
On October 29, 2013, hundreds of parents and children participated in a "stroller brigade" on Capitol Hill during which they lobbied Senate offices to provide greater protections against harmful chemicals during reform of the Toxic Substances Control Act (TSCA). The stroller brigade also joined actress Jennifer Beals at a press conference on TSCA reform sponsored by the Safer Chemicals, Healthy Families Coalition.
Following the July 31, 2013, Senate Environment and Public Works hearing on TSCA reform, Committee Members reportedly continue negotiations on S. 1009, the bi-partisan TSCA reform bill sponsored by Senator David Vitter (R-LA) and the late Senator Frank Lautenberg (D-NJ). The Biobased and Renewable Products Advocacy Group's (BRAG™) previous report on the bill and hearing is available online.
Also on October 29, 2013, the Center for Progressive Reform released a report critical of TSCA and the two current Senate bills designed to reform it, S. 1009 and S. 696, which is sponsored by the late Senator Frank Lautenberg (D-NJ). The report, "TSCA Reform: Preserving Tort and Regulatory Approaches," makes several specific recommendations for reform, including making it easier for EPA to obtain toxicity data from chemical manufacturers. A copy of the report is available online.
The number of Significant New Use Rules (SNUR) issued by EPA has greatly increased in recent months, causing long and costly delays for companies trying to market biobased chemicals and products. The Biobased and Renewable Products Advocacy Group (BRAG™) is holding a workshop to help companies avoid these delays by explaining how, when, and to which entity or entities in the value chain the Toxic Substances Control Act (TSCA) applies, and what a renewable chemical innovator must do to comply with TSCA's requirements.
Getting to Yes: A Focused Workshop Addressing Key Policy, Legislative, and Regulatory Issues in Commercializing Biobased Products
Presented by the Biobased and Renewable Products Advocacy Group in conjunction with the Society for the Commercial Development of Industrial Biotechnology
2:30-5:30 p.m., November 11, 2013, at the Chemical Heritage Foundation Center in Philadelphia, PA
Innovation is great, but commercializing innovations is even better. BRAG's Washington, D.C.-based team of government affairs experts, scientists, lawyers, and public policy managers will present a workshop to identify and discuss critical policy, legislative, and regulatory issues impacting the commercialization of renewable chemicals. Attendees will engage in focused discussions on current regulatory issues impacting the market, as well as a robust dialogue on expectations for the evolution of policy considerations from varied players, including those from academia, environmental groups, Capitol Hill, and EPA.
Join us at the beautiful Chemical Heritage Foundation's Library, Museum, and Conference Center in Philadelphia's historic district for this essential workshop prior to the 2nd International SCD-iBIO Commercializing Global Green Forum. For more information and to register click here.