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By Lynn L. Bergeson and Carla N. Hutton
 
The House Energy and Commerce Subcommittee on Environment and Climate Change will hold a hearing on October 27, 2021, on “TSCA and Public Health: Fulfilling the Promise of the Lautenberg Act.” According to the October 20, 2021, press release issued by the House Committee on Energy and Commerce, Representatives Frank Pallone, Jr. (D-NJ), Chair of the Committee, and Paul Tonko (D-NY), Chair of the Subcommittee, stated that the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act) made “crucial” reforms to the Toxic Substances Control Act (TSCA) “that improve how the federal government protects Americans from dangerous chemicals, and now we must ensure those reforms are implemented effectively and honestly.” Pallone and Tonko stated that during the previous administration, “chemical risk evaluations were skewed in favor of industry to the detriment of workers and communities. We must protect consumers from exposure to toxic substances and ensure the Environmental Protection Agency is using the tools Congress granted it to protect public health.” The Subcommittee will discuss the implementation of the Lautenberg Act and the U.S. Environmental Protection Agency’s (EPA) “efforts to get TSCA back on track.”


 

By Lynn L. Bergeson and Carla N. Hutton
 
The House Science, Space, and Technology Subcommittee on Investigations and Oversight held a hearing on March 17, 2021, on “Brain Drain:  Rebuilding the Federal Scientific Workforce.”  The Subcommittee heard from the following witnesses:

  • Ms. Candice Wright, Acting Director, Science, Technology Assessment, and Analytics, U.S. Government Accountability Office (GAO);
     
  • Mr. Max Stier, President and Chief Executive Officer (CEO), Partnership for Public Service;
     
  • Dr. Andrew Rosenberg, Director of the Center for Science and Democracy, Union of Concerned Scientists; and
     
  • Dr. Betsy Southerland, Former Director of Science and Technology, Office of Water, U.S. Environmental Protection Agency (EPA).

During the hearing, Subcommittee Chair Bill Foster (D-IL) submitted a Majority staff report into the record on “trends in the Science, Technology, Engineering and Mathematics (STEM) workforce within federal science agencies following the sequestration in the early 2010s that impacted staffing within federal agencies and workforce-related actions taken by the Trump Administration that contributed to destabilizing the federal STEM workforce over the last four years.”  The staff report, “Scientific Brain Drain:  Quantifying the Decline of the Federal Scientific Workforce,” evaluates how STEM civil service employment has expanded or contracted over the past decade at several federal agencies, including EPA.  According to the Committee’s press release, the report finds significant declines in the STEM workforce at EPA, particularly within the Office of Research and Development, the Department of Energy (DOE), and the National Oceanic and Atmospheric Administration (NOAA), as well as that racial and ethnic employment gaps are significant in STEM fields compared to the total federal workforce.  The press release states that “[t]hese trends suggest the United States may need to recommit to promoting U.S. competitiveness in science and innovation, especially as China redoubles its investments in advanced technology and commitment to a pipeline of highly educated STEM workers.”


 

By Lynn L. Bergeson and Carla N. Hutton
 
On March 3, 2021, Representatives Frank Lucas (R-OK), Ranking Member of the House Science, Space, and Technology Committee; Stephanie Bice (R-OK), Ranking Member of the Environment Subcommittee; and Jay Obernolte (R-CA), Ranking Member of the Investigations and Oversight Subcommittee, sent a letter to the U.S. Environmental Protection Agency (EPA) urging EPA to expedite any reevaluation of the Toxic Substances Control Act’s (TSCA) systematic review methods.  As reported in our February 17, 2021, blog item, on February 16, 2021, the National Academies of Sciences, Engineering, and Medicine (National Academies) announced the availability of a report entitled The Use of Systematic Review in EPA’s Toxic Substances Control Act Risk Evaluations.  In its final report, the Committee to Review EPA’s TSCA Systematic Review Guidance Document states that it “was in strong consensus that the processes used by [the Office of Pollution Prevention and Toxics (OPPT)] do not meet the evaluation criteria specified in the Statement of Task (i.e., comprehensive, workable, objective, and transparent).”  EPA published a press release on February 16, 2021, in response to the Committee’s report, announcing that it “will refine its approach to selecting and reviewing the scientific studies that are used to inform” TSCA chemical risk evaluations.  According to the press release, EPA has already begun to develop a TSCA systematic review protocol in collaboration with its Office of Research and Development to incorporate approaches from the Integrated Risk Information System (IRIS) Program.  In their March 4, 2021, press release, the Republicans state that the IRIS Program “has come under fire from Congress and independent reviewers like the National Academies for its inconsistent process, lack of transparency, and failure to complete assessments in a timely fashion.”  The Republicans ask for EPA’s commitment that, “in accordance with congressional intent to operate with flexibility and speed, TSCA does not fully or consistently adopt program processes or procedures implemented by IRIS.”  If EPA incorporates elements developed by the IRIS Program into TSCA, the Republicans “expect the Agency to assess their benefits and impacts thoroughly, while also adhering to the statutorily prescribed deadlines and scientific standards mandated.”


 

By Lynn L. Bergeson and Carla N. Hutton
 
The House Energy and Commerce Subcommittee on Oversight and Investigations will hold a fully remote hearing on March 10, 2021, on “The Path Forward:  Restoring the Vital Mission of EPA.”  According to the House Energy and Commerce Committee’s March 3, 2021, press release, the hearing will examine the “critical need to restore the mission” of the U.S. Environmental Protection Agency (EPA) and how EPA “can address climate change and other urgent challenges to the nation’s environment and public health.”  Subcommittee members will hear “from former EPA leaders about what steps must be taken to undo the damage done to the agency over the last four years and to re-empower it to fulfill its mission.”  The hearing will be available via live webcast.


 

By Lynn L. Bergeson , Lisa M. Campbell, and Carla N. Hutton
 
Representatives Frank Pallone, Jr. (D-NJ), Chair of the House Committee on Energy and Commerce, and Jan Schakowsky (D-IL), Chair of the House Energy and Commerce Subcommittee on Consumer Protection and Commerce, wrote to Amazon Chief Executive Officer (CEO) and Chair Jeff Bezos on October 7, 2020, requesting that he launch an investigation into the safety of Amazon’s product line, AmazonBasics, and answer a series of questions pertaining to the company’s product safety and recall practices.  The Committee’s October 7, 2020, press release notes that the request comes after a CNN investigation found that many of AmazonBasics’ electronic products “have exploded, caught fire, sparked, melted, or otherwise created hazardous situations at rates well above comparable products.”  According to the press release, many of these products were never recalled and continue to be sold.
 
In addition to their request that Bezos initiate an investigation into the safety of AmazonBasics products, Pallone and Schakowsky also seek answers to a series of questions, including:

  • What Amazon-owned products are no longer for sale due at least in part to safety concerns?
     
  • What products -- both Amazon-owned and third party -- have been officially recalled?
     
  • What notification does Amazon provide to customers who have purchased products that are later recalled or found to be unsafe?
     
  • In addition to direct notification, what other kinds of consumer or public outreach does Amazon conduct to ensure consumers properly dispose of, repair, or replace an unsafe product?
     
  • How can consumers find information regarding recalled products? If information is not readily available, why not, and what plans exist to make it available?
     
  • How can consumers report product safety issues to Amazon?
     
  • How many staff does Amazon have devoted to ensuring that products sold on its platform follow all applicable laws and regulations, and that Amazon is in compliance with obligations to notify the U.S. Consumer Product Safety Commission (CPSC) when a product is suspected of being unsafe?

The letter requests a response no later than October 21, 2020.
 
The letter and request for answers to the questions noted above are another indication of the pressure certain Members in Congress are putting on Amazon to ensure the safety of the products the platform hosts.  Amazon is under increasing scrutiny by the U.S. Environmental Protection Agency (EPA) in this regard, as reported in our February 16, 2018, and June 17, 2020, blog items, and this Congressional inquiry seems more of the same.  These efforts will almost certainly cause more pressure on product manufacturers to ensure the products they offer for sale on Amazon are compliant.


 

By Lynn L. Bergeson and Carla N. Hutton
 
The House Science, Space, and Technology Subcommittee on Research and Technology will hold a hearing on “Benign by Design:  Innovations in Sustainable Chemistry” on July 25, 2019.  Witnesses will include:

  • Dr. Tim Persons, Chief Scientist and Managing Director, Science, Technology Assessment, and Analytics, U.S. Government Accountability Office (GAO);
     
  • Dr. John Warner, President and Chief Technology Officer, Warner Babcock Institute for Green Chemistry;
     
  • Dr. Julie Zimmerman, Professor and Senior Associate Dean, School of Forestry and Environmental Studiesa and Deputy Director, Center for Green Chemistry and Green Engineering, Yale University;
     
  • Ms. Anne Kolton, Executive Vice President, Communications, Sustainability, and Market Outreach, American Chemistry Council; and
     
  • Mr. Mitchell Toomey, Director of Sustainability, BASF in North America.

 

By Lynn L. Bergeson, Charles M. Auer, and Carla N. Hutton

On March 27, 2019, the House Science, Space, and Technology Subcommittee on Investigations and Oversight and Subcommittee on Environment held a hearing on “EPA’s IRIS Program:  Reviewing its Progress and Roadblocks Ahead.”  The hearing focused on issues with the U.S. Environmental Protection Agency’s (EPA) Integrated Risk Information System (IRIS) Program, as described in two recent reports issued by the U.S. Government Accountability Office (GAO), Chemical Assessments:  Status of EPA’s Efforts to Produce Assessments and Implement the Toxic Substances Control Act (Chemical Assessments Report) and High-Risk Series:  Substantial Efforts Needed to Achieve Greater Progress on High-Risk Areas (High-Risk Report).  Please see our full memorandum for more information on what transpired at the hearing, including some background and commentary. 


 

By Lynn L. Bergeson and Carla N. Hutton

On June 6, 2018, the New York State Department of Environmental Conservation (NYSDEC) released its final policy and form for manufacturer disclosures under the Household Cleansing Product Information Disclosure Program.  The Disclosure Program is similar to the recently enacted California Cleaning Product Right to Know Act of 2017 which requires the disclosure of cleaning product ingredients by way of website or product label.  The Household Cleansing Product Information Disclosure Program requires manufacturers of cleaning products sold in New York to disclose chemical ingredients and identify any ingredients that appear on authoritative lists of chemicals of concern on their websites.  New York states that it “will be the first state in the nation to require such disclosure and the State’s program goes beyond initiatives in other states by requiring the robust disclosure of byproducts and contaminants, as well as chemicals with the potential to trigger asthma in adults and children.”  NYSDEC has posted the Household Cleansing Product Information Disclosure Program Certification Form and Program Policy and a response to comments.

Our recent memorandum provides an in-depth review of important information from the Disclosure Program Certification Form and Program Policy, including covered products and definitions, information to be disclosed, the lists of chemicals of concern covered by the Program, and the effective dates.  With the first disclosures due July 1, 2019, manufacturers need to review the Program Policy and begin compiling information concerning the ingredients of their products.


 

By Lynn L. Bergeson and Margaret R. Graham

On April 26, 2018, U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt was grilled by Members of the U.S. House of Representatives Committee on Energy and Commerce, Subcommittee on Environment at a hearing titled The Fiscal Year 2019 U.S. Environmental Protection Agency Budget.  The budget was plainly not the primary topic as the House Committee Members covered a lot of ground.  Pruitt fielded many questions and comments from House Democrats on his alleged ethical lapses regarding spending, security details, retaliation towards EPA employees who reportedly questioned his practices, and concerns about a hostile work environment.  Lawmakers from both sides of the aisle expressed concern over the installation of a secure phone booth in his office.  His opening statement addressed these criticisms only vaguely, stating that they are merely a distraction and an attempt to “attack and derail the President’s agenda and these administration’s priorities.”  There were also questions concerning the delay of the proposed rule banning the use of methylene chloride, and criticism regarding EPA’s recent proposed rule to strengthen transparency in regulatory science (the “secret” Science Rule). 

No attempt is made here to summarize the lengthy hearing.

Pruitt’s testimony statement is available here.  It does not contain information on the Science Rule, but it briefly references the implementation of the Toxic Substances Control Act (TSCA) in a section entitled “Ensuring the Safety of Chemicals in Commerce.”

More information on the many TSCA implementation initiatives is available on our TSCA Reform News & Information webpage, as well as the TSCAblogTM.  A summary of Pruitt’s testimony before the Senate Committee on Environment and Public Works is available in our blog item “Pruitt Addresses Legacy Issues, TSCA Implementation in Oversight Hearing.” 


 

In-House Counsel Beware:  TSCA Reform Impacts Everyone, an article by Lynn L. Bergeson, on Law360, outlines the extensive revisions to the Toxic Substances Control Act (TSCA) that will impact legal practices and business operations, due to the new TSCA law, the Frank R. Lautenberg Chemical Safety for the 21st Century Act.  The content includes:

  • TSCA Reform, What Just Happened?;
  • The New TSCA and the New Normal;
  • How the New TSCA Will Impact Product Manufacturers; and
  • A list of seven “need-to-know” aspects for in-house counsel regarding how the new law works, when these impacts will occur, and how best to be prepared for them.