For other versions of this document, see http://wikileaks.org/wiki/CRS-RL33336
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Order Code RL33336
CRS Report for Congress
Received through the CRS Web
Implementing International Agreements on
Persistent Organic Pollutants (POPs): Proposed
Amendments to the Toxic Substances Control Act
Updated July 25, 2006
Linda-Jo Schierow
Specialist in Environmental Policy
Resources, Science, and Industry Division
Congressional Research Service ~ The Library of Congress
Implementing International Agreements on Persistent
Organic Pollutants (POPs): Proposed Amendments to
the Toxic Substances Control Act
Summary
Between 1998 and 2001, the United States signed two international treaties and
one executive agreement to reduce production and use, and regulate trade and
disposal, of certain "persistent organic pollutants" (POPs) and other chemicals that
(for the most part) are strictly regulated in U.S. commerce. POPs are chemicals like
polychlorinated biphenyls (PCBs) and the pesticide DDT that do not break down
easily in the environment, tend to accumulate as they move up the food chain, and
may be harmful to people and wildlife. The President signed and has submitted the
Stockholm Convention on Persistent Organic Pollutants and the Rotterdam
Convention on Prior Informed Consent to the Senate for advice and consent. If the
Senate consents by a two-thirds majority, and the Congress passes legislation that is
needed to implement the two treaties (as well as the executive agreement, the POPs
Protocol to the Aarhus Convention on Long-Range Transboundary Air Pollution),
then the treaties can be ratified and the agreements would take effect domestically.
Current U.S. laws do not provide for the U.S. Environmental Protection Agency
(EPA) to fully comply with the provisions of these international agreements. For
example, EPA has no authority to ban or restrict production of a chemical intended
for export, even if its sale and use in the United States are prohibited. If the United
States is going to abide by the agreements, Congress would have to enact
amendments to two federal laws: the Toxic Substances Control Act (TSCA),
governing industrial uses of chemicals, and the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), which regulates pesticide sale and use. Legislation has
been introduced in the 109th Congress that would allow implementation of the
agreements. H.R. 4591 and H.R. 4800 would amend TSCA, while H.R. 3849 and
S. 2042 would amend FIFRA. This report focuses on the bills that offer proposed
amendments to TSCA. TSCA requires EPA to begin rulemaking for a chemical if
"there is a reasonable basis to conclude that the manufacture, processing, distribution
in commerce, use, or disposal ... will present an unreasonable risk of injury to health
or the environment." The act directs EPA to regulate "to the extent necessary to
protect adequately against such risk using the least burdensome requirements."
H.R. 4591 was ordered to be reported, amended, by the House Committee on
Energy and Commerce on July 12, 2006. The two bills propose many similar
amendments to TSCA, but bill provisions differ significantly with respect to
regulating chemicals that might be added to the agreements by amendments in the
future. H.R. 4591 would provide EPA circumscribed authority to regulate "to the
extent necessary to protect human health and the environment," require extensive
analysis of options, and prescribe regulatory outcomes that achieve "a reasonable
balance of social, environmental, and economic costs and benefits." H.R. 4800
would provide clear authority to regulate in accord with amendments to the
international agreements and prescribe chemical regulations that protect against
"significant adverse human health and environmental effects." Key bill provisions
are summarized in Table 1. This report will be updated as warranted by legislative
action and interest.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The International Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Stockholm Convention on Persistent Organic Pollutants
(Stockholm POPs Convention) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Amendments to Add Chemicals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rotterdam Convention on Prior Informed Consent (PIC Convention) . . . . . 4
Persistent Organic Pollutants Protocol to the Aarhus Convention on
Long Range Transboundary Pollution . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Amendments to Add Chemicals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Legislative Proposals to Amend TSCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
H.R. 4591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Notice and Comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Information Gathering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Rulemaking for New Chemicals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
PIC Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
State Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
H.R. 4800 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Notice and comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Information Gathering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Rulemaking for New Chemicals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
PIC Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
State Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Comparison of H.R. 4591 and H.R. 4800 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Rulemaking for New Chemicals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Information Gathering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Sense of the Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
State Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
List of Tables
Table 1. Comparison of Amendments to the Toxic Substances Control Act
(TSCA) Proposed by H.R. 4591, as Ordered to be Reported, and
H.R. 4800, as Introduced in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . 16
Implementing International Agreements on
Persistent Organic Pollutants (POPs):
Proposed Amendments to the Toxic
Substances Control Act
Introduction
Persistent organic pollutants (POPs) are chemicals that can harm human health
and wildlife, do not break down easily in the environment, and tend to accumulate
as they move up the food chain. Many POPs are transported in the air and water
across international boundaries. Most POPs are synthetic, industrial chemicals or
pesticides, but a few are unintentional byproducts of processes such as combustion.
Between 1998 and 2001, the United States participated in the negotiation of
three UN-sponsored international agreements to address global problems associated
with POPs. Two agreements, the 2001 Stockholm Convention on Persistent Organic
Pollutants (Stockholm POPs Convention) and the 1998 Rotterdam Convention on the
Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides
in International Trade (PIC Convention), have been submitted as treaties to the
Senate for its advice and consent to ratification. The third agreement, the 1998
Aarhus Protocol on Persistent Organic Pollutants (LRTAP POPs Protocol), amends
the 1979 Geneva Convention on Long-Range Transboundary Air Pollution (LRTAP).
Both the LRTAP and LRTAP POPs Protocol were entered into by the United States
as executive agreements.1
Current U.S. laws governing chemicals do not provide for the U.S.
Environmental Protection Agency (EPA) to fully implement and enforce the
provisions of the international agreements. For example, EPA has no authority to
ban or restrict production of a chemical intended for export, even if its sale and use
in the United States are prohibited. Therefore, if the United States is to comply with
the provisions of the three international agreements, Congress would have to enact
amendments to two federal laws: the Toxic Substances Control Act (TSCA),
governing industrial uses of chemicals, and the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), which regulates pesticide sale and use.
If the Senate provides its advice and consent to ratification of the two treaties,
and Congress passes legislation to allow EPA implementation of the three
agreements, the agreements may take effect domestically, and the United States
1
For background on the differences between treaties and executive agreements, see CRS
Report RL32528, International Law and Agreements: Their Effect upon U.S. Law, by
Michael Garcia and Arthur Traldi.
CRS-2
would have the right to fully participate in international decisions about how the
agreements should be implemented, enforced, and amended.
Implementing legislation has been introduced into the 109th Congress. H.R.
4591 and H.R. 4800 would amend TSCA, whereas H.R. 3849 and S. 2042 would
amend FIFRA. H.R. 4591 was ordered to be reported, amended, by the House
Committee on Energy and Commerce on July 12, 2006.
The focus of this report is on proposed amendments to TSCA. This report does
not constitute a legal analysis of the bills or of existing law. Instead, it begins by
describing the three international agreements and relevant provisions of TSCA. The
report then summarizes selected provisions of H.R. 4591, as ordered to be reported,
and H.R. 4800, as introduced, and compares them in a brief narrative and more
detailed table. This report will be updated as warranted by legislative activity.
The International Agreements
Stockholm Convention on Persistent Organic
Pollutants (Stockholm POPs Convention)
The Stockholm POPs Convention aims to eliminate or severely restrict
production, use, trade, release, and disposal of 12 pollutants, known as the "dirty
dozen," all of which are strictly regulated in the United States. The 12 POPs include
eight chlorinated pesticides2 (aldrin, chlordane, DDT, dieldrin, endrin, heptachlor,
mirex, and toxaphene), polychlorinated biphenyls (PCBs), hexachlorobenzene
(HCB), polychlorinated dibenzo-p-dioxins (dioxins), and polychlorinated dibenzo-p-
furans (furans). Specific exemptions from restrictions are allowed, for example, for
use of DDT to fight malaria-carrying mosquitos.3
Annex A to the Stockholm Convention lists the intentionally produced
chemicals for which production, use, import, and export must be eliminated, and
specifies exemptions from controls. Annex B lists chemicals (currently only DDT)
for which production and use must be restricted in specified ways. Annex C
identifies unintentionally produced (by-product) chemicals that are subject to the
treaty.
The Stockholm Convention commits each participating country to create a
national implementation plan, establish a monitoring network, ensure public
awareness of the problems posed by POPs, and compile inventories of POP use and
storage. Developing countries that are parties to the treaty are assisted in these tasks
by up to $500 million in funding from the Global Environment Facility (GEF), which
is administered by the World Bank and the United Nations.
2
"Pesticides" is used here to refer to chemical substances best known for their pesticidal
properties, that is, their ability to kill weeds, insects, and other pests.
3
Exemptions are listed in Annex A of the Stockholm Convention. Text of the treaty is
available at [http://www.pops.int], visited July 19, 2006.
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Amendments to Add Chemicals. The convention allows new chemicals
to be added to the list by amendment to treaty Annexes A, B, and C. Any party to the
Convention may propose an amendment to list additional chemicals.4 Amendments
may be adopted at a meeting of the Conference of the Parties (COP), after being
circulated to all parties at least six months in advance of the meeting. Parties at the
meeting must try to reach agreement by consensus, but when consensus cannot be
reached, a vote by three-fourths of the parties present and voting is sufficient to adopt
the amendment. Article 8 requires the following before chemicals may be added to
the annexes:
! chemicals must meet criteria listed in Annex D, with respect to
chemical characteristics and environmental and human health
effects;
! a risk profile is prepared according to Annex E, based on
information submitted by the parties or observers;
! a review committee decides, on the basis of the risk profile, that "the
chemical is likely, as a result of its long-range environmental
transport, to lead to significant adverse human health and/or
environmental effects such that global action is warranted";
! a risk management review is conducted according to Annex F,
including evaluation of possible alternative control measures in
terms of their feasibility, efficacy, risk, availability, accessibility,
costs, and positive and negative impacts on health, agriculture, living
things, economy, progress toward sustainable development and
social costs; and
! the COP decides, taking into account any scientific uncertainty, "in
a precautionary manner," to list the chemical and to adopt associated
control measures.
The amendment enters into force for all parties one year after adoption, except for
any party which either
! "opts out" by notifying the depositary within the year that it does not
accept the amendment, or
! makes a declaration at the time it deposits its instrument of treaty
ratification that any amendment to Annexes A, B, or C will enter
into force for it only if it affirmatively accepts that amendment (i.e.,
"opts in").
The United States particularly favored inclusion of the latter treaty provision.5 The
Bush Administration has testified that the United States, at the time of its ratification
of the Stockholm Convention, intends to declare that any amendment shall enter into
4
A nation is said to be a "party" to the treaty if it has signed and ratified it.
5
Treaty Doc. No. 107-5. p. 15.
CRS-4
force for the United States only upon deposit of an instrument of U.S. ratification
indicating acceptance or approval of that amendment."6
The Stockholm POPs Convention has been signed by 151 nations; it has been
ratified by 128 nations, but not by the United States. It entered into force on May 17,
2004.7 The President transmitted the treaty document for the Stockholm Convention
(Treaty Doc. No. 107-5) to the U.S. Senate on May 7, 2002, where it was referred to
the Committee on Foreign Relations. The Committee held a hearing on the POPs
treaty on June 17, 2003, but has not reported its views to the Senate.
Rotterdam Convention on Prior Informed
Consent (PIC Convention)
The Convention on the Prior Informed Consent Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade (PIC Convention),
another global treaty negotiated under the auspices of the UN, was concluded in
Rotterdam, The Netherlands, in 1998. The PIC Convention has as its objective:
... to promote shared responsibility and cooperative efforts among Parties in the
international trade of certain hazardous chemicals in order to protect human
health and the environment from potential harm and to contribute to their
environmentally sound use, by facilitating information exchange about their
characteristics, by providing for a national decision-making process on their
import and export and by disseminating these decisions to Parties. (Article 1)
The PIC Convention provides for prior notification to potential importing
nations by countries exporting substances that have been banned or severely
restricted in the exporting country, or that are severely hazardous pesticide
formulations. Many POPs fall into these categories. Parties exporting certain
chemicals listed in Annex III to the treaty must generally ensure that the importing
party has consented to import the chemical.
The PIC Convention was opened for signature in 1998 and signed by 73
countries, including the United States. It has been ratified by 109 nations, but not by
the United States. This treaty entered into force February 24, 2004.8 The President
transmitted the treaty (Treaty Doc. No. 106-21) to the Senate on February 9, 2000.
The Committee on Foreign Relations held a hearing on the PIC treaty on June 17,
2003, but has not reported its views to the Senate.
6
Claudia McMurray, Deputy Assistant Secretary for Environment, Bureau of Oceans, and
International Environmental and Scientific Affairs, U.S. Department of State. Testimony
before the House Subcommittee on Environment and Hazardous Materials, Committee on
Energy and Commerce, July 13, 2004. U.S. Govt. Print. Off., Washington, DC. p. 13.
7
The latest information on the Stockholm Convention is available at [http://www.pops.int/].
8
The latest information on the PIC Convention is available at [http://www.pic.int/].
CRS-5
Persistent Organic Pollutants Protocol to the Aarhus
Convention on Long Range Transboundary Pollution
The 1979 Convention on Long-Range Transboundary Air Pollution (LRTAP)
is a regional agreement among countries that are members of the UN Economic
Commission for Europe (UNECE), including the United States. The UNECE has 55
members, mainly European and former Soviet Union countries, as well as the United
States and Canada. LRTAP was negotiated to deal with air pollution problems
through air quality monitoring cooperative research and exchanges of information,
and development of national policies and strategies aimed at reducing emissions of
pollutants. The United States signed the LRTAP Convention on November 13, 1979,
and deposited its instrument of acceptance on November 30, 1981. The agreement
was consistent with existing U.S. law, so there was no need to enact enabling
legislation. Because the convention was signed as an executive agreement, it was not
submitted to the Senate for advice and consent. The LRTAP Convention entered into
force in 1983. It has been ratified, accepted, approved, or acceded to by 49 parties,
including the United States.
In 1998, a POPs Protocol to LRTAP was concluded in Aarhus, Denmark. The
objective of the amending protocol is "to control, reduce or eliminate discharges,
emissions and losses of persistent organic pollutants." It requires parties to take
"effective measures ... to eliminate the production and use of substances listed in
Annex I" (aldrin, chlordane, chordecone, DDT, dieldrin, endrin, heptachlor,
hexabromobiphenyl, hexachlorobenzene [HCB], mirex, PCB, and toxaphene) and to
ensure that when such substances are destroyed, disposed of, or moved across
international boundaries, it is done in an "environmentally sound manner." Most of
these POPs are heavily restricted in the United States. The LRTAP POPs Protocol
also requires countries to restrict uses of substances listed in Annex II (DDT,
hexachlorocyclohexane [HCH]9, and PCB); if possible, to reduce total annual
emissions of each substance in Annex III (polyaromatic hydrocarbons [PAHs],
dioxins/furans, and HCB); and to ensure environmentally sound disposal of
substances listed in Annex I, II, or III.
The POPs Protocol to LRTAP contains specific exemptions to the prohibitions
on production, use, and disposal. For instance, quantities of chemicals used in
laboratory research are exempted from the prohibitions. Another exemption allowed
under the POPs Protocol is the use of DDT for controlling vectors of disease,
particularly mosquitos that may carry malaria.
The protocol was concluded in 1998, was signed by 36 states, and has been
ratified by 28 of the 55 States in the United Nations Economic Commission for
Europe (UNECE). It entered into force in October 2003.10 Neither the LRTAP
Convention nor the LRTAP POPs Protocol requires Senate approval.
9
Lindane is HCH in which at least 99% of the isomer is in the gamma form. Technical
HCH consists of mixed isomers.
10
The latest information on the POPs Protocol may be found at [http://www.unece.org/
env/lrtap/pops_h1.htm].
CRS-6
Amendments to Add Chemicals. The POPs Protocol allows new
chemicals to be added by amendment to the lists in treaty Annexes I or II. Any party
may propose an amendment adding a chemical, which may be adopted by consensus
of the parties represented at a session of the executive body in the same manner as
amendments to the LRTAP Convention. However, before chemicals may be added
to the annexes, the POPs Protocol requires the following:
! a risk profile on the substance and information demonstrating that
the substance meets selection criteria specified in Executive Body
Decision 1998/2, with respect to chemical characteristics and the
potential for environmental and human health effects;
! a summary report and information on production; uses; emissions;
levels in the environment; degradation processes, rates, and
products; bioavailability; and socio-economic factors related to
alternatives for reducing emissions, including costs and benefits of
each;
! an Executive Body decision that the risk profile is acceptable and
further action is warranted;
! one or more technical reviews of the risk profile; and
! evaluation of the proposal, on the basis of the risk profile and
technical review(s), in light of the objective of the POPs Protocol in
Article 2: "to control, reduce or eliminate discharges, emissions and
losses of persistent organic pollutants."
Current Law
The Toxic Substances Control Act (15 U.S.C. §§ 2601-2692; TSCA) authorizes
EPA to identify potentially dangerous products or uses of chemicals in manufacturing
and interstate commerce that should be subject to federal control. TSCA mandates
the screening of new and existing chemicals in commerce to determine whether their
production, importation, processing, distribution, use, or disposal might pose an
unreasonable risk of injury to health or the environment. To that end, EPA is
authorized to require companies manufacturing chemicals to provide data on each
chemical's characteristics and use.
Under TSCA, EPA is required to initiate rulemaking for a chemical if the
Administrator finds that "there is a reasonable basis to conclude that the manufacture,
processing, distribution in commerce, use, or disposal ... presents, or will present an
unreasonable risk of injury to health or the environment." The act directs EPA to
regulate a chemical "to the extent necessary to protect adequately against such risk
using the least burdensome requirements." TSCA authorizes a wide range of
regulatory options to reduce chemical risks, from a requirement for labeling to a total
ban on production and distribution in commerce.
Section 12 exempts from TSCA requirements (except for testing requirements)
chemicals that are manufactured exclusively for export, if the chemicals (or
containers) bear a stamp or label indicating that they are intended for export.
However, EPA may require testing to determine whether or not such chemicals
CRS-7
present unreasonable risks, and the Section 12 exemption does not apply to a
chemical found to "present an unreasonable risk of injury to health within the United
States or to the environment of the United States." Section 12(b) requires any
exporter of a chemical for which EPA requires testing to notify EPA that it intends
to export the chemical, and EPA must notify the government of the importing nation
that such test data are available.11
TSCA Section 6 specifies in detail the rule-making procedure for chemicals
found to present an unreasonable risk. The procedure combines requirements for
providing public notice and an opportunity for comment (as is required for most
environmental rules under 5 U.S.C. §553), with an opportunity for a hearing. The
hearing format, which is unique among environmental statutes in the context of
rulemaking, is prescribed in TSCA §6(c)(3) and provides for cross-examination of
such persons and issues as the Administrator deems appropriate and "required for a
full and true disclosure with respect to [disputed issues of material fact]." In
addition, TSCA §6(c)(1) requires that EPA "consider and publish a statement with
respect to" the health and environmental effects of the chemical; the magnitude of
human and environmental exposure to the chemical; the benefits of the chemical for
various uses, and availability of substitutes; and "reasonably ascertainable economic
consequences of the rule, after consideration of the effect on the national economy,
small business, technological innovation, the environment, and public health."
Because rulemaking under TSCA §6 requires a considerable amount of data
collection and analysis, promulgation of a regulation often takes many years.
The final chemical rule must be based on "the matter in the rulemaking record
(as defined in Section 19(a))," which includes the rule, the Administrator's finding
that the chemical presents an unreasonable risk, the cost-benefit statement, the
hearing transcript, any written submissions of interested parties, and other relevant
material. TSCA Section 19 authorizes any person to file a petition for judicial review
of a final rule within 60 days of its promulgation. TSCA directs a court to set aside
rules promulgated under TSCA Section 6 "if the court finds that the rule is not
supported by substantial evidence in the rulemaking record ... taken as a whole."
TSCA Section 18(a) preempts state and local law if EPA promulgates a rule or
order under Section 6 that is intended to protect against a risk of injury to health or
the environment associated with a chemical. State or local law is permitted if it is
identical to the federal requirement, adopted under another federal law, or prohibits
the use of such substance or mixture within the relevant jurisdiction (except use in
manufacture or processing of other substances). TSCA Section 18(b) allows states
or localities to petition EPA to issue a rule exempting a state or local law if
compliance would not cause a violation of federal law, it provides a significantly
11
TSCA Section 4 requires testing if the manufacture, distribution in commerce, processing,
use, or disposal of a chemical may present an unreasonable risk of injury to health or the
environment; there are insufficient data and experience upon which to predict effects on
health or the environment; and testing is necessary to develop such data. EPA also must
require testing of a chemical that will be produced in substantial quantities if significant
human exposure might occur.
CRS-8
higher degree of protection from such risk than the federal requirements, and does
not unduly burden interstate commerce.
Legislative Proposals to Amend TSCA
Although existing U.S. laws authorize most EPA activities that are necessary
to fulfill commitments under the three international agreements, new legislation
would be needed to authorize implementation of a few treaty provisions, as well as
to resolve several inconsistencies between current U.S. laws and international law.
The legislation that is the subject of this report would accomplish these tasks by
amending the Toxic Substances Control Act (TSCA), which governs most chemicals
in U.S. commerce.12
H.R. 4591
Representative Gillmor introduced H.R. 4591 on December 16, 2005. The bill
is very similar to a draft proposal that was the subject of a hearing July 13, 2004,
before the House Subcommittee on Environment and Hazardous Materials, Energy
and Commerce Committee. Mr. Gillmor is the chairman of that subcommittee.13
H.R. 4591 was ordered to be reported, amended, by the House Committee on Energy
and Commerce on July 12, 2006.
H.R. 4591 would add a new Title V, Implementation of International
Agreements, to TSCA, pertaining exclusively to POPs. It would prohibit
manufacture, processing, distribution in commerce for export, use, and disposal of
chemicals currently listed in Annex A or B of the Stockholm POPs Convention or
Annex I or II of the LRTAP POPs Protocol, with the exception of polychlorinated
biphenyls (PCBs), which would continue to be regulated under TSCA §6(e).14 The
chemicals covered by the prohibitions include aldrin, chlordane, chlordecone (a.k.a.
Kepone), DDT, dieldrin, endrin, hexachlorocyclohexane (HCH, which includes
Lindane), heptachlor, hexachlorobenzene (HCB), hexabromobiphenyl (HBB), mirex,
and toxaphene.
Exemptions. Exemptions from prohibitions would be provided directly by
the bill, consistent with exemptions identified in the annexes to the agreements. In
12
The Toxic Substances Control Act (15 U.S.C. 2601-2692) does not apply to chemicals
regulated under other acts, including pesticides, tobacco, radioactive materials, firearms,
food, drugs, cosmetics, and medical devices (15 U.S.C. §2602(2)).
13
U.S. House. Committee on Energy and Commerce, Subcommittee on Environment and
Hazardous Materials. POPs, PIC, and LRTAP: The Role of the U.S. and Draft Legislation
to Implement These International Conventions. Hearing. 108th Congress, 2nd Sess. U.S.
Govt. Print. Off., Washington DC. 135 p. [http://frwebgate.access.gpo.gov/cgi-bin/
getdoc.cgi?dbname=108_house_hearings&docid=f:95454.pdf]
14
The bill authorizes EPA to promulgate regulations for PCBs under existing U.S. law for
the purpose of U.S. compliance with provisions of the Stockholm POPs Convention or the
LRTAP POPs Protocol.
CRS-9
addition, POPs that became wastes regulated under other federal laws would be
exempted from all prohibitions. EPA would be given authority to promulgate
regulations providing specific exceptions to the prohibitions, where they would not
be inconsistent with U.S. obligations under the international agreements.
Notice and Comment. H.R. 4591 would require EPA to publish a notice in
the Federal Register and request public comments whenever the international bodies
reach one of three decision points in the process of considering whether to add a
chemical by amending an annex to the Stockholm POPs Convention or the LRTAP
POPs Protocol. Under the Stockholm POPs Convention the three decision points
occur when 1) the POPs Review Committee (known as POPRC, usually pronounced
as "pop rock")15 decides, under Article 8, paragraph 4(a), that a proposal for listing
a chemical fulfills the screening criteria, or the Conference of Parties (COP)16 decides
under Article 8, paragraph 5, that the proposal shall proceed; 2) the POPRC decides
on the basis of a risk profile, under Article 8, paragraph 7(a), that global action is
warranted, or the COP decides, under Article 8, paragraph 8, that the proposal shall
proceed; and 3) the POPRC recommends on the basis of a risk profile and a risk
management plan, under Article 8, paragraph 9, that the COP consider making a
listing decision. Under the LRTAP POPs Protocol, the three decision points occur
when 1) a party submits a risk profile in support of a proposal to list a new chemical;
2) the Executive Body established under Article 10 decides that additional
consideration is warranted and requires technical reviews (under Executive Body
Decision 1998/2); and 3) the technical review of a proposed chemical is completed.
Information Gathering. H.R. 4591 would authorize EPA to issue a general
order requiring submission of specified information by any manufacturer, processor,
distributor in commerce for export, or disposer of a chemical being considered for
listing by amendment of an annex.
Rulemaking for New Chemicals. If a chemical were added to Annex A or
B to the Stockholm POPs Convention or Annex I or II to the LRTAP POPs Protocol,
and the United States consented to be bound by that amendment (that is, opted in),
H.R. 4591 would authorize EPA to make or modify rules to the extent that rules were
necessary to meet U.S. obligations. H.R. 4591 provides such rulemaking authority
"to the extent necessary to protect human health and the environment in a manner
that achieves a reasonable balance of social, environmental, and economic costs and
benefits."
In promulgating rules under TSCA, Title V, EPA would be required to consider
risks to health and the environment, as well as direct and indirect socio-economic
effects of regulation for the various uses of the chemical and other chemicals that
might serve as substitutes for the chemical proposed for listing. H.R. 4591 would
require an assessment of "the degree to which the manufacture, processing,
distribution in commerce for export, use, or disposal of the chemical ... is necessary
to prevent significant harm to an important sector of the economy. The bill would
15
The POPRC is established by the Conference of the Parties at its first meeting under
Article 19, paragraph 6.
16
The COP is established in Article 19, paragraph 1.
CRS-10
require assessments to use "sound and objective scientific practices" and "determine
the weight of the scientific evidence concerning such risks or effects based on the
best available scientific information, including peer-reviewed studies, in the
rulemaking record."
Judicial Review. TSCA §19 would be amended by H.R. 4591 to authorize
any person to file a petition for judicial review within 60 days of the promulgation
of a final rule under Title V. The bill would direct the court to set aside a rule that
is "not supported by substantial evidence in the rulemaking record ... taken as a
whole." The bill would make all public comments received in response to a
rulemaking part of the rulemaking record.
PIC Convention. H.R. 4591 also would amend TSCA §12 by adding a new
subsection (c) to implement the PIC Convention. The amended version of TSCA
would require EPA to determine, with the concurrence of the Secretary of State,
whether chemicals are banned or severely restricted within the United States, and to
notify the PIC Secretariat and the public of each such determination. EPA also
would be required to inform the public about chemicals listed in Annex III of the PIC
Convention and the conditions or restrictions relating to those chemicals imposed by
importing foreign states. The amended law would direct people who distribute
chemicals in commerce for export that are identified in Annex III to comply with
export conditions or restrictions identified by EPA in the public notice. In accord
with the PIC Convention, H.R. 4591 would require exporters to notify EPA of their
intent to export chemicals that are banned or severely restricted chemicals, chemicals
listed in Annex III of the PIC Convention, or Stockholm POPs chemicals that are
allowed to be exported. EPA then would be required to provide a copy of the notice
to the importing foreign state. However, H.R. 4591 would require EPA to permit
export of trace concentrations without prior notification to importing countries, if the
agency found that such concentrations did not pose a significant threat to human
health or the environment and were not inconsistent with any of the three
international agreements.
State Preemption. H.R. 4591, as ordered to be reported, would amend
TSCA §18 to preempt state and local requirements that are applicable to any POPs
or LRTAP POPs chemical that has been listed in Annex A or B to the Stockholm
POPs Convention or Annex I or II to the LRTAP POPs Protocol, if the listing has
entered into force for the United States. A state or local requirement would be
permitted only if it were identical to the requirement prescribed by the Administrator,
adopted under the authority of the Clean Air Act or any other federal law, or
prohibited the use of the substance within the jurisdiction of the state or local
government. A current exception under TSCA §18(b) would remain available to
states that petition EPA for relief. EPA may grant such exceptions for any state or
local law that would not cause a violation of a rule promulgated under Title V, if the
state or local requirements provided a significantly higher degree of risk protection
and did not "unduly burden interstate commerce."
H.R. 4800
Representative Hilda Solis, Ranking Member of the House Subcommittee on
Environment and Hazardous Materials, introduced H.R. 4800 on February 17, 2006.
CRS-11
The language of H.R. 4800 was offered as an amendment in the nature of a substitute
to H.R. 4591 during committee mark up, but the amendment failed.
H.R. 4800 is similar to H.R. 4591 in that it would add a new Title V to TSCA,
pertaining exclusively to POPs. It also would prohibit the manufacture, processing,
distribution in commerce for export, use, and disposal of chemicals currently listed
in Annex A or B to the Stockholm POPs Convention or Annex I or II to the LRTAP
POPs Protocol, other than PCBs. In addition, H.R. 4800 would provide EPA with
authority to issue regulations when necessary to enforce these prohibitions, as well
as all other provisions of Section 502 in the new TSCA title; Section 502 addresses
regulation of chemicals covered by the Stockholm POPs Convention and the LRTAP
POPs Protocol, including chemicals that might be added by amendment of these
agreements.
Exemptions. H.R. 4800 would authorize EPA to promulgate rules providing
exemptions from the prohibitions, to the extent such exemptions are consistent with
the Stockholm POPs Convention or the LRTAP POPs Protocol. Exemptions would
apply to POPs chemicals that became waste only if they were managed in a manner
consistent with the relevant provision of the applicable international agreement.
Notice and comment. H.R. 4800 has public notice requirements similar to
those of H.R. 4591 at the same three decision points in the international process of
considering whether to add a new chemical to an annex to the Stockholm POPs
Convention or the LRTAP POPs Protocol. However, H.R. 4800 would require EPA
to publish a notice within 45 days of each decision point, whereas H.R. 4591 would
allow EPA 60 days to act.
Information Gathering. Within 60 days of the publication of the first and
second such public notices by EPA, H.R. 4800 would require all manufacturers,
processors, distributors in commerce for export, and disposers of the chemical being
considered to provide to EPA specified information to assist the agency in evaluating
the case for adding the chemical.
Rulemaking for New Chemicals. If a new chemical were added by
amendment of Annex A or B to the Stockholm POPs Convention or Annex I or II to
the LRTAP POPs Protocol, EPA would be required within one year to publish in the
Federal Register either of the following:
! a proposed rule to prohibit or restrict U.S. manufacture, processing,
distribution in commerce for export, use, or disposal for such
chemical under Title V;
! a statement that such a proposed rule has been issued under other
federal law, and a final rule will be issued within two years;
! a statement that additional regulation is not necessary, because the
chemical already is regulated; or
! a proposed decision not to prohibit or restrict U.S. manufacture,
processing, distribution in commerce for export, use, or disposal of
the chemical, because those activities are not likely to lead to
significant adverse human health or environmental effects.
CRS-12
Within two years of the date of publication of a proposed rule or a proposed decision,
H.R. 4800 would require EPA to publish in the Federal Register a final rule or a final
decision, but such rules could take effect only if the United States had consented to
be bound by the listing of the chemical.
H.R. 4800 would require EPA to develop and promulgate rules using the notice
and comment procedure of 5 U.S.C. §553. A minimum standard of stringency would
be established for all Title V rules: proposed and final rules to regulate a chemical
that is newly listed in an annex to an international agreement, and any existing
regulations that EPA has identified in a published statement as being adequate to
regulate such chemical, must "at a minimum" implement control measures specified
for that chemical in the relevant international agreement, and must protect against
"significant adverse human health and environmental effects." These rulemaking
criteria would be substituted for the rulemaking criteria in TSCA §6. In addition,
H.R. 4800 would prohibit manufacture, processing, distribution in commerce for
export, use, and disposal that is inconsistent with regulations promulgated under Title
V for any newly listed chemical. The bill would provide exemptions consistent with
the international agreements.
PIC Convention. Most provisions of H.R. 4800 that implement the PIC
Convention are similar to provisions of H.R. 4591, with a few exceptions. For
example, H.R. 4800 explicitly authorizes EPA to promulgate rules to facilitate
implementation of, and ensure compliance with, the PIC Convention. In addition,
export of trace concentrations of PIC chemicals is not explicitly authorized.
State Preemption. State and local requirements would not be preempted by
H.R. 4800, unless they were less stringent than requirements adopted by the United
States under TSCA Title V.
Judicial Review. Finally, H.R. 4800 would authorize any person to file a
petition for judicial review of a final rule or final decision. The court would be
directed to apply the review standard at 5 U.S.C. §706, which would "set aside" an
agency rule or decision found to be "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law."
Comparison of H.R. 4591 and H.R. 4800
H.R. 4591 and H.R. 4800 both aim to authorize EPA to implement the
Stockholm POPs Convention, the LRTAP POPs Protocol, and the PIC Convention
by proposing amendments to TSCA. The bills would add a new Title V to the end
of the act, and would prohibit (subject to certain exceptions) the manufacture,
processing, distribution in commerce for export, use, and disposal of 12 specified
chemical substances. On the other hand, these are competing bills, in which many
small provisions and several key provisions differ. Of particular note are provisions
pertaining to the regulation of chemicals that might be added to the Stockholm POPs
Convention or the LRTAP POPs Protocol by amendment. Generally, it appears that
H.R. 4591 would provide circumscribed authority to EPA to regulate such chemicals
"to the extent necessary to protect human health and the environment," require
CRS-13
extensive analysis of options, and prescribe regulatory outcomes that achieve "a
reasonable balance of social, environmental, and economic costs and benefits." H.R.
4800 would provide clear authority to regulate in accord with amendments to the
international agreements, and prescribe chemical regulations that protect against
"significant adverse human health and environmental effects." Some specific
differences in policy approaches are discussed below.
Rulemaking for New Chemicals. The bills differ significantly in the scope
and direction of regulatory authority provided to EPA with respect to a chemical that
might be added by an amendment to Annex A or B to the Stockholm POPs
Convention or Annex I or II to the LRTAP POPs Protocol. H.R. 4591 would
authorize but not mandate regulations to prohibit or restrict U.S. manufacture,
processing, distribution in commerce for export, use, or disposal for a newly listed
chemical. Authority would be provided to the extent necessary to meet obligations
of the United States under the relevant international agreement, and rules could
become effective only if the United States consented to be bound by the amendment.
In contrast, H.R. 4800 requires EPA to regulate newly listed chemicals unless similar
regulations have been or are being promulgated under another federal law, or EPA
decides that U.S. manufacture, processing, distribution in commerce for export, use,
or disposal of the chemical is not "likely to lead to significant adverse human health
or environmental effects."
H.R. 4800 imposes a two-year deadline to ensure a timely promulgation or
decision. H.R. 4591, as amended, also would require a timely decision by the
Administration with respect to addition of a chemical through an amendment to
Annex A or B to the Stockholm POPs Convention or Annex I or II to the LRTAP
POPs Protocol: If the Administration did not deposit an instrument of ratification,
acceptance, accession, or approval of the amendment within one year of the listing
decision by the international body, EPA would be required to publish in the Federal
Register a notice (1) of a decision to initiate a rulemaking, (2) that a rulemaking
process would not be initiated, or (3) indicating the status of deliberations about
whether to publish a notice, and an estimate of the timeframe expected for a decision.
The regulatory criteria and processes proposed by the bills also differ. H.R.
4591 would authorize EPA rulemaking that was "necessary to protect human health
and the environment in a manner that achieves a reasonable balance of social,
environmental, and economic costs and benefits." To provide a basis for a rule, EPA
would be required to consider the following:
! "the effects of such chemical" on health and the environment
and the magnitude and impacts of exposure;
! the benefits of the chemical for various uses and the
availability, risks, and economic consequences of substitutes;
! the "reasonably ascertainable economic consequences of the
proposed ... regulations," after considering "the effect on the
national economy, small business, technological innovation,
the environment, and public health, including the degree to
which the manufacture, processing, distribution in commerce
for export, use, or disposal of the chemical ... is necessary to
CRS-14
prevent significant harm to an important sector of the
economy;" and
! national and international consequences likely to arise
("including possible consequences of using alternative
products or processes") due to U.S. regulatory action.17
H.R. 4591 would require assessments of risk or effects to use "sound and
objective scientific practices," and "determine the weight of the scientific evidence
concerning such risks or effects based on the best available scientific information,
including peer-reviewed studies." All of this scientific information would be part of
the rulemaking record and subject to judicial review. Rulemaking under H.R. 4591
would follow the procedure established by the Administrative Procedure Act (5
U.S.C. 553).
H.R. 4800 would replace the rulemaking provisions of TSCA section 6 with a
new standard for U.S. regulations under TSCA title V: to protect against "significant
adverse human health and environmental effects,"18 and "at a minimum" to
implement the control measures specified for that chemical in the relevant annex to
an international agreement. Rules would be proposed and made final through the
notice and comment procedure of the Administrative Procedure Act (5 U.S.C. 553).
No specific analyses would be required, but EPA routinely analyzes costs, benefits,
and risks of chemicals it is regulating, sometimes including the costs, benefits, and
risks of substitutes for important uses of those chemicals. Analysis of the risks,
benefits, and costs of rules generally is required, at least for rules with significant
economic impacts, under Executive Order 12866, Regulatory Planning and Review,
the Unfunded Mandates Reform Act (2 U.S.C. §§1501-1571), and the Regulatory
Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness
Act, (5 U.S.C. §§ 601 et seq). However, H.R. 4800 does not require EPA to
formulate rules based on consideration of risks, costs, and benefits.
Judicial Review. Both bills authorize any person to petition the court for
judicial review of a final rule or decision within 60 days of its issuance. The bills
provide different standards of review, however. While H.R. 4800 would direct the
court to reject rules that are "arbitrary and capricious," H.R. 4591 would require that
17
Some of these requirements could be satisfied, at least in part, by analyses already
conducted in connection with rulemaking: EPA routinely analyzes costs, benefits, and risks
of chemicals it is regulating, sometimes including the costs, benefits, and risks of substitutes
for important uses of those chemicals. Analysis of the risks, benefits, and costs of rules is
required for "significant" rules under Executive Order 12866, Regulatory Planning and
Review, the Unfunded Mandates Reform Act (2 U.S.C. §§1501-1571), and the Regulatory
Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act,
(5 U.S.C. §§ 601 et seq).
18
This same language appears in the Stockholm POPs Convention, Article 8, paragraph 7(a),
in which it is provided as part of the basis for evaluating a risk profile of a chemical being
considered for listing in Annex A, B, or C. If the POPRC decides, based on its evaluation
of the risk profile, that a chemical "is likely ... to lead to significant adverse human health
and/or environmental effects...," the proposal to add the chemical proceeds to the third stage,
in which possible control measures are evaluated.
CRS-15
rules be "supported by substantial evidence in the rulemaking record ... taken as a
whole." Both standards are contained in Title V, Section 706, of the United States
Code. Section 706 applies the "arbitrary and capricious" standard to federal
regulations developed using the notice and comment procedure of 5 U.S.C. §553,
which includes rules implementing most environmental statutes. The "substantial
evidence" standard of 5 U.S.C. §706 applies to rules promulgated under TSCA §6(c),
which employs a rulemaking process and hearing format that is unique to TSCA.
Relative to the "arbitrary and capricious" standard, the "substantial evidence"
standard arguably places a greater burden on the federal agency to prove its
compliance with statutory directives. However, reviewing courts have often melded
the two standards together when assessing the propriety of agency actions.19
Information Gathering. The bills also take different approaches to gathering
information about a chemical when it is being considered as a possible addition to
an international agreement by amendment of an annex. H.R. 4591 would authorize
EPA to issue administrative orders to manufacturers and others requiring them to
submit specified information. H.R. 4800 would direct manufacturers and others to
provide such information to EPA within 60 days of publication of the first and
second notices that a chemical is being considered for listing in an annex to an
international agreement.
Sense of the Congress. Another significant difference between the bills is
the statement in H.R. 4591, but not in H.R. 4800, that it is the sense of the Congress
that the United States should declare its intention to ratify each amendment to an
annex before that amendment may enter into force for the United States -- that is,
that the President should choose the "opt in" treaty provision. Moreover, H.R. 4591
would require the President "as appropriate" to consult with Congress before
consenting to bind the United States to an amendment to Annex A, B, or C of the
Stockholm POPs Convention.
State Preemption. The bills differ, too, in their approaches to preemption of
state and local laws. H.R. 4591 would preempt all state and local laws that pertain
to any chemical listed in an annex to the Stockholm POPs Convention or the LRTAP
POPs Protocol, if the United States has consented to be bound by an amendment to
the international agreement that listed that chemical.20 State and local laws would be
permitted only if they were identical to the federal requirement, adopted under
another federal law, or prohibited the use of the chemical within the relevant
jurisdiction. This approach to preemption is identical to the existing provision of
TSCA for chemicals regulated under section 5 or 6. H.R. 4591 also retains the TSCA
§18(b) process in which states may petition for relief from the preemption provision.
In contrast, H.R. 4800 would not preempt state and local laws, unless more stringent
federal regulations had been promulgated.
19
McGrath, Matthew J. 1986. "Convergence of the substantial evidence and arbitrary and
capricious standards of review during informal rulemaking," 54 Geo. Wash. L. Rev. 541.
20
Generally, at that point, the chemical would already be regulated domestically, because
it is the general policy of the United States to defer final approval (i.e., ratification) of an
agreement or amendment until domestic law is in place.
CRS-16
Table 1 summarizes the provisions discussed above as well as other selected
provisions, highlighting those that appear to offer distinct policy approaches to U.S.
regulation of POPs.
Table 1. Comparison of Amendments to the Toxic Substances
Control Act (TSCA) Proposed by H.R. 4591, as Ordered to be
Reported, and H.R. 4800, as Introduced in the 109th Congress
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Definitions Section 2 adds a new Title V to Same as H.R. 4591.
TSCA. New TSCA §501 in-
cludes the following definitions:
LRTAP POPs chem- Any chemical listed in Annex I or Same as H.R. 4591.
ical substance or II to the LRTAP POPs Protocol.21
mixture (hereafter, These include aldrin, chlordane,
LRTAP POPs chlordecone, DDT, dieldrin,
chemicals) endrin, heptachlor, hexachloro-
benzene (HCB), hexa-
bromobiphenyl (HBB),
hexachlorocyclohexane (HCH),
mirex, PCBs, toxaphene, and "any
other ... that is listed."
POPs chemical sub- Any chemical listed in Annex A or Same as H.R. 4591.
stance or mixture B to the Stockholm POPs Conven- [§2]
(hereafter, POPs tion. These include aldrin, chlor-
chemicals) dane, DDT, dieldrin, endrin,
heptachlor, HCB, mirex, PCBs,
toxaphene, and "any other ... that
is listed." [§2]
Prohibitions for cur- New TSCA §502(a) prohibits Similar to H.R. 4591, but these
rently listed POPs manufacture, processing, distribu- prohibitions are subject to subsec-
and LRTAP POPs tion in commerce for export, use, tions (c) and (d) which provide
chemicals and disposal, except as otherwise exemptions under the international
provided within Title V, of aldrin, agreements, and subsection (i)
chlordane, chlordecone, DDT, which provides for harmonization
dieldrin, endrin, HCH, heptachlor, between the agreements, and the
HCB, HBB, mirex, and relevant provisions of the Stock-
toxaphene. holm POPs Convention and
[§2] LRTAP POPs Protocol, notwith-
standing any other provision of
law." [§2]
21
"Stockholm POPs Convention" means the 2001 Stockholm Convention on Persistent
Organic Pollutants. "LRTAP POPs Protocol" refers to the 1998 Aarhus Protocol on
Persistent Organic Pollutants to the 1979 Convention on Long-Range Transboundary Air
Pollution. "PIC Convention" means the 1998 Rotterdam Convention on the Prior Informed
Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.
Section numbers in brackets at the end of each entry or provision refer to the section of the
bill in which the provisions described are found.
CRS-17
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Authority to regu- No comparable provision. New TSCA §502(j) authorizes
late EPA to issue regulations "as nec-
essary to implement" §502 (which
implements the Stockholm POPs
Convention and the LRTAP POPs
Protocol.)[§2]
New TSCA §502(c) authorizes No specific provision.
EPA to amend or promulgate reg-
ulations for PCBs under TSCA
§6(e) or other applicable federal
law for the purpose of U.S. com-
pliance with provisions of the
Stockholm POPs Convention or
the LRTAP POPs Protocol. [§2]
Exemptions from New TSCA §502(b) broadly au- No comparable provision.
prohibitions for cur- thorizes EPA to promulgate regu-
rently listed chemi- lations providing specific excep-
cals tions to the prohibitions in
§502(a), where not inconsistent
with U.S. obligations under the
Stockholm POPs Convention or
the LRTAP POPs Protocol.
New TSCA §503(f) and (g) ex- New TSCA §502(c) and (d) pro-
empt from the prohibitions in vide authority to EPA to provide
§502(a) those activities with re- exemptions from the prohibitions,
spect to POPs chemicals that are but rules must be promulgated
consistent with either a "use-spe- under the regulatory criteria of
cific exemption" or "an acceptable new TSCA §502(h) (see below) in
purpose"available to the United consultation, rather than concur-
States under Annex A or B to the rence, with the Secretary of State.
Stockholm POPs Convention, or
"an allowed restricted use or condi-
tion" available to the United
States under Annex I or II to the
LRTAP POPs Protocol, as deter-
mined by EPA through final rules
promulgated with the concurrence
of the Secretary of State under the
regulatory criteria of new TSCA
§503(e). (See below.)
Rules will not apply to specified Similar to H.R. 4591, but adds the
categories of chemicals which ap- condition that such exemptions
pear to be consistent with those "would, as a result, not prevent the
exempted by the Stockholm POPs United States from complying
Convention or the LRTAP POPs with the obligations of the United
Protocol, such as chemicals that States" under the Stockholm POPs
are unintentional trace contami- Convention or the LRTAP POPs
nants in products or articles. [§2] Protocol. [§2]
CRS-18
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Exemptions (con.) Exempts production of HCH, use Exempts production or use of
of technical HCH as an intermedi- HCH that complies with restric-
ate in chemical manufacturing, tions and conditions specified for
and use of lindane for seed treat- HCH in Annex II to the LRTAP
ment and public health, unless POPs Protocol.
EPA by rule restricts such exemp-
tion consistent with an amendment
to the LRTAP POPs Protocol.
Also exempt is any POPs chemi- Exempts any chemical that has
cal or LRTAP POPs chemical that become waste that is managed in a
has become waste that is "other- manner consistent with Article 6
wise regulated under Federal of the Stockholm POPs Conven-
law." tion, and any LRTAP POPs chem-
ical that has become waste that is
disposed of in an environmentally
sound manner in accordance with
paragraph 1(b) of Article 3 of the
LRTAP POPs Protocol.
Authorizes EPA (with concur- Similar to H.R. 4591, but requires
rence of the Secretary of State) to EPA consultation with the Secre-
grant exemptions from rules on its tary of State, rather than the Secre-
own initiative or in response to a tary's concurrence. If an exemp-
petition, consistent with autho- tion is no longer authorized by the
rized exemptions under the United States, it is unlawful for
LRTAP POPs Protocol. Exemp- anyone to manufacture, process,
tions must be withdrawn if no lon- distribute in commerce for export,
ger consistent with the conditions or use a LRTAP POPs chemical in
requisite to them. the manner authorized by such
[§2] exemption. [§2]
PCBs Section 3 amends TSCA §6(e), to Section 3 amends TSCA §6(e), to
add two new subparagraphs pro- add one new subparagraph prohib-
hibiting exemptions from EPA iting exemptions from EPA rules
rules restricting the manufacture, restricting the manufacture, pro-
processing, distribution in com- cessing, distribution in commerce,
merce, or use of any PCB, unless or use of any PCB, unless such
such activity is authorized by rule activity is authorized by rule un-
under new TSCA §503(f) or (g), der new TSCA §502(c) or (d),
which provide exemptions, and which provide exemptions, and
subject to §503(h), which harmo- subject to §502(h), which estab-
nizes any conflicts. lishes the regulatory criteria.22
Section 3 also prohibits distribu- Same as H.R. 4591.
tion in commerce for export of [§3]
equipment containing more than
0.05 liter of a liquid that is more
than 50 parts PCBs per million
parts of liquid (except for the pur-
pose of environmentally sound
disposal, to the extent authorized
by federal law). [§3]
22
In the introduced version of H.R. 4800, Section 3 incorrectly references subsections
§503(f), §503(g), and §503(h).
CRS-19
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Procedure for con- New TSCA §503(a) requires EPA New TSCA §502(e) is similar to
sidering a proposal within 60 days to publish in the H.R. 4591, but requires publica-
to add a chemical by Federal Register a notice and re- tion within 45 days.
amending an annex quest for public comment, if under
to an agreement: Article 8 of the Stockholm POPs
Convention, 1) the POPs Review
First notice Committee decides that a proposal
to list a new chemical fulfills the
screening criteria (under Article 8,
¶4(a), or 2) the Conference of the
parties (COP) decides the pro-
posal should proceed (under Arti-
cle 8, ¶5); or if, under the LRTAP
POPs Protocol, a party submits a
risk profile in support of a pro-
posal to list a new chemical.
Requires notice to include: Similar to H.R. 4591, but does not
1) identity of the chemical; require a summary of how the
2) a summary of the criteria ap- chemical is regulated under U.S.
plied and process used to consider law. In addition, requires a re-
the proposal or profile for listing a quest for information and com-
new chemical; 3) a summary of ment relevant to the listing deci-
the committee or conference deci- sion. (See "Information Provi-
sion and its basis; and 4) a sum- sion" below.)
mary of how the chemical is regu- [§2]
lated under U.S. law. [§2]
Procedure for con- New TSCA §503(b) requires EPA New TSCA §502(f) is similar to
sidering a proposal within 60 days to publish a notice H.R. 4591, but EPA must publish
to add a chemical by in the Federal Register and to pro- within 45 days.
amending an annex vide for public comment, if under
to an agreement: Article 8 of the Stockholm POPs
Convention, 1) the POPs Review
Second notice Committee decides (under ¶7(a))
that global action is warranted, or
2) the conference decides (under
¶8) that a proposal shall proceed,
or, if under the LRTAP POPs Pro-
tocol, the Executive Body
(LRTAP Convention Article 10)
determines that further consider-
ation is warranted and requires
technical reviews (under Execu-
tive Body Decision 1998/2).
Requires notice to include 1) iden- Similar to H.R. 4591, but does not
tity of the chemical; 2) a summary require a summary of the com-
of the committee or conference ments received in response to the
decision, or the Executive Body first public notice. In addition,
determination and its basis; 3) a requests information on the poten-
summary of comments received in tial impact of various risk manage-
response to the first EPA notice; ment approaches on minority and
and 4) solicitation for comments low-income populations.
and information regarding any [§2]
present or planned production or
use of the chemical. [§2]
CRS-20
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Procedure for con- New TSCA §503(c) requires New TSCA §502(g) is similar to
sidering a proposal EPA to publish a notice in the H.R. 4591, but requires publica-
to add a chemical by Federal Register and to provide tion within 45 days.
amending an annex for public comment within 60
to an agreement: days, if under Article 8, ¶9 of the
Stockholm POPs Convention, the
Third notice POPs Review Committee recom-
mends that the conference con-
sider making a listing decision, or
under the LRTAP POPs Protocol,
when a technical review of a pro-
posal to list a chemical is com-
plete.
Requires notice to include a sum- Similar to H.R. 4591, but no sum-
mary of 1) the recommendation mary is required of control mea-
and its basis, or the technical re- sures that exist under U.S. laws or
view; 2) any control measures of public comments received in
proposed or that exist under U.S. response to the second EPA no-
laws; and 3) any public comments tice.
received in response to the second [§2]
EPA notice. [§2]
Information Collec- New TSCA §503(d) authorizes New TSCA §§502(e)(4) and
tion EPA to issue a general order in 502(f)(4) require manufacturers,
the Federal Register requiring any processors, distributors in com-
manufacturer, processor, distribu- merce for export, and disposers of
tor in commerce for export, or a chemical that is subject to a first
disposer of a chemical that is sub- or second public notice require-
ject to a first, second, or third pub- ment under §502(e) or (f), within
lic notice requirement under 60 days of the publication of such
§503(a), (b), or (c), to submit to notice to provide to EPA informa-
EPA information "that is known tion "that is known or readily ob-
or readily obtainable to that per- tainable to that person" to assist
son" to assist the agency in evalu- the agency in evaluating the case
ating the case for adding the for adding the chemical.
chemical.
Authorizes EPA to require speci- Specifies the information to be
fied information. provided, which is similar to in-
formation that may be requested
under H.R. 4591.
Authorizes EPA, with the concur- Similar to H.R. 4591, but EPA is
rence of the Secretary of State, to required only to consult with the
require information updates. Secretary of State, rather than to
[§2] obtain concurrence. Also autho-
rizes EPA, after the initial dead-
line for information submission, to
require information from anyone
who begins manufacturing, pro-
cessing, distributing in commerce
for export, or disposing of a chem-
ical proposed for listing. [§2]
CRS-21
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Regulations for If an amendment listing a chemi- New TSCA §502(h) requires EPA
chemicals added by cal is added to Annex A or B to to publish in the Federal Register
amendment of an the Stockholm POPs Convention within one year of the addition of
annex to the Stock- or Annex I or II to the LRTAP a chemical by an amendment to
holm POPs Conven- POPs Protocol, and the Adminis- Annex A or B to the Stockholm
tion or LRTAP tration does not deposit an instru- POPs Convention or Annex I or II
POPs Protocol ment of ratification, acceptance, to the LRTAP POPs Protocol ei-
accession, or approval of that ther --
Authority/ amendment within one year, new (1) a proposed rule to prohibit or
Requirement TSCA §503((k) requires EPA to restrict U.S. manufacture, process-
publish in the Federal Register a ing, distribution in commerce for
notice (1) of a decision to initiate export, use, or disposal for such
a rulemaking, (2) that a chemical; or
rulemaking process would not be (2) a statement that --
initiated, or (3) indicating the sta- (A) a proposed rule has been
tus of deliberations about whether issued under other federal law to
to publish a notice, and an esti- prohibit or restrict U.S. manufac-
mate of the timeframe expected ture, processing, distribution in
for a decision. commerce for export, use, or dis-
New TSCA §503(e)(1) authorizes posal for the added chemical; and
EPA to issue or modify rules to a final rule will be issued within
prohibit or restrict U.S. manufac- two years of the publication date
ture, processing, distribution in of the proposed rule; or
commerce for export, use, or dis- (B) additional regulation is not
posal for any chemical that is necessary, because the chemical
added by an amendment to Annex already is regulated in the United
A or B to the Stockholm POPs States; or
Convention or Annex I or II to the (3) a proposed decision not to pro-
LRTAP POPs Protocol. hibit or restrict U.S. manufacture,
This authority to issue rules is processing, distribution in com-
granted only "to meet, in whole or merce for export, use, or disposal
in part, the obligations of the of the chemical, because those
United States under the Stockholm activities are not likely to lead to
POPs Convention or LRTAP significant adverse human health
POPs Protocol if the United States or environmental effects.
were to consent to be bound for
that applicable amendment." Within two years of the date of
[§2] publication of a proposed rule
(under TSCA or other federal law)
or proposed decision, requires
EPA to publish in the Federal
Register either --
1) a final rule (under TSCA or
other Federal law); or
2) a final decision.
[§2]
CRS-22
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Standard New TSCA §503(e)(1) authorizes New TSCA §502(h)(1) requires
EPA to issue or modify rules "to that any proposed or final rule
the extent necessary to protect (under TSCA or any other federal
human health and the environment law) or existing regulation identi-
in a manner that achieves a rea- fied in a statement that is pub-
sonable balance of social, environ- lished by EPA to satisfy the provi-
mental, and economic costs and sions of new TSCA §502(h) "at a
benefits." Costs and benefits in- minimum implements the control
clude both qualitative and quanti- measures specified for the chemi-
tative costs and benefits. cal ... in Annex A and B of the
[§2] [Stockholm] POPs Convention
and Annex I and II to the LRTAP
POPs Protocol." A proposed or
final rule promulgated under sub-
section (h) must protect against
"significant adverse human health
and environmental effects."
[§2]
Analysis New TSCA §503(e)(2) requires No comparable provision, but
EPA to consider effects on health EPA would be conducting analy-
and the environment and the mag- ses of risks, costs, and benefits,
nitude and impacts of exposure; including impacts on small entities
the benefits of the chemical for and responding to public com-
various uses and the availability, ments during the rulemaking pro-
risks, and economic consequences cedure, in compliance with Execu-
of substitutes; the "reasonably as- tive Order 12866, the Administra-
certainable economic conse- tive Procedure Act (5 U.S.C.
quences of the proposed ... regula- §553), and the Regulatory Flexi-
tion," after considering "the effect bility Act, as amended by the
on the national economy, small Small Business Regulatory En-
business, technological innova- forcement Fairness Act, (5 U.S.C.
tion, the environment, and public §§ 601 et seq).
health, including the degree to
which the manufacture, process-
ing, distribution in commerce for
export, use, or disposal of the
chemical ... is necessary to prevent
significant harm to an important
sector of the economy"; and na-
tional and international conse-
quences likely to arise ("including
possible consequences of using
alternative products or processes")
due to U.S. regulatory action.
New §503(e)(4) requires that as-
sessments of risk or effects use
"sound and objective scientific
practices," and "determine the
weight of the scientific evidence
concerning such risks or effects
based on the best available scien-
tific information, including peer-
reviewed studies, in the
rulemaking record."
CRS-23
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Analysis (con.) New §503(e)(3) authorizes EPA No comparable provision, but
to consider recommendations of EPA does consider relevant views
the POPs Review Committee and of international bodies when pro-
the conference listing decision mulgating rules implementing in-
(under the Stockholm POPs Con- ternational treaties to which the
vention), any technical review United States is a party. See, for a
conducted pursuant to the Execu- recent example, 70 Federal Reg-
tive Body Decision 1998/2 and ister 25727, May 13, 2005, in
listing decision (under the LRTAP which EPA discusses the views of
POPs Protocol), and information parties with respect to exemptions
submitted by the United States in allowed under the Montreal Proto-
support of a listing decision. [§2] col.
Rulemaking proce- No comparable provision. States that no other rulemaking
dure procedure under TSCA applies to
rules promulgated under TSCA
§502(h).
No comparable provision. Requires promulgation of rules
using the notice and comment pro-
cedure specified in Title V, Sec-
tion 553, of the U.S. Code. [§2]
Rules tied to amend- Rules may not take effect until the Same provision. [§2]
ment's entry into United States has consented to be
force for the United bound by the amendment.
States
New TSCA §504 states that it is No comparable provision.
the sense of the Congress that the
United States shall consent to be
bound by an amendment to Annex
A, B, or C of the Stockholm POPs
Convention only after the United
States has declared ("opted in")
that such amendment shall enter
into force upon U.S. ratification,
acceptance, approval, or accession
to such amendment. [§2]
Effective date of New TSCA §506 states that re- New TSCA §507 is similar.
requirements quirements to comply with provi- [§2]
sions of the Stockholm POPs Con-
vention, LRTAP POPs Protocol,
or PIC Convention may take ef-
fect only after the United States
has consented to be bound by the
amendment. [§2]
CRS-24
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Prohibitions for No comparable provision. New TSCA §502(b) prohibits
chemicals added by manufacture, processing, distribu-
amending Annex A tion in commerce for export, use,
or B to the Stock- and disposal inconsistent with reg-
holm POPs Conven- ulations promulgated under sub-
tion or Annex I or II section (h), of "any other chemical
to the LRTAP POPs ... listed" in Annex A or B to the
Protocol Stockholm POPs Convention or
Annex I or II to the LRTAP POPs
Protocol, subject to subsections
(c) and (d) which provide exemp-
tions under the international
agreements, and subsection (i)
which provides for harmonization
between the agreements, and the
relevant provisions of the Stock-
holm POPs Convention and
LRTAP POPs Protocol, notwith-
standing any other provision of
law." [§2]
Exemptions to regu- Exemptions provided by new Exemptions provided by new
lations for chemi- TSCA §503(f) and (g) for cur- TSCA §502(c) and (d) for cur-
cals proposed to be rently listed Stockholm POPs rently listed Stockholm POPs
added by amending Convention and LRTAP POPs Convention and LRTAP POPs
an annex of the Protocol chemicals, apply also to Protocol chemicals, apply also to
Stockholm POPs chemicals newly added to an an- chemicals newly added to an an-
Convention or nex of the Stockholm POPs Con- nex of the Stockholm POPs Con-
LRTAP POPs Pro- vention or LRTAP POPs Protocol. vention or LRTAP POPs Protocol.
tocol [§2] [§2]
Protection from in- No comparable provision, but New TSCA §503(c) explicitly
formation disclosure TSCA §14 currently applies to all provides that information obtained
requirements information obtained "under this by EPA under TSCA Title V will
Act." TSCA §14 generally pro- be subject to TSCA §14.
tects trade secrets while allowing [§2]
disclosure to U.S. employees and
for the purpose of protecting
health or the environment against
an unreasonable risk of injury.
Source categories New TSCA §503(i) requires pub- No comparable provision.
for Annex C chemi- lic notice and opportunity for pub-
cals lic comment if parties to the
Stockholm POPs Convention de-
cide to add new source categories
to Annex C, and such categories
are not listed as major sources
under the Clean Air Act §112(c).
[§2]
CRS-25
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Action plans for New TSCA §503(j) requires EPA No comparable provision.
dibenzo dioxins, within 90 days to issue a public
dibenzo furans, notice and provide an opportunity
HCB, and PCBs for public comment, if the United
States 1) develops an action plan,
2) reviews a submitted action
plan, 3) requires changes in mate-
rials, products, or processes, or 4)
requires use of "best available
techniques," so as to reduce emis-
sions of chemicals listed in Annex
C (polychlorinated dibenzo diox-
ins and furans, HCB, and PCBs).
Prohibits implementation of any
action that is not authorized in
U.S. statutes. [§2]
Consultation with Requires the President "as appro- No comparable provision.
Congress priate" to consult with Congress
before consenting to bind the
United States to an amendment to
Annex A, B, or C to the Stock-
holm POPs Convention. Directs
the President to provide to the
House Committee on Energy and
Commerce and the Senate Com-
mittee on Environment and Public
Works information relevant to
such amendment that is requested
by Congress in order to fulfill its
duties related to protection of pub-
lic health and the environment.
[§2]
Technical coopera- New TSCA §505 requires EPA, New TSCA §504 has similar pro-
tion with the State Department and visions.
other agencies, to participate in [§2]
international efforts on chemical
substances, and to participate in
technical cooperation and capacity
building to support implementa-
tion of the Stockholm POPs Con-
vention, LRTAP POPs Protocol,
and PIC Convention.
Requires that EPA publish in the No comparable provision.
Federal Register timely advance
notice of the known schedule and
agenda of meetings concerning the
Stockholm POPs Convention,
LRTAP POPs Protocol, or PIC
Convention. [§2]
CRS-26
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Technical coopera- New TSCA §505 also directs EPA No comparable provision.
tion (con.) to provide timely advance notice
of the schedule and agenda of
meetings on the three agreements
and subsidiary bodies. [§2]
Harmonization of New TSCA §503(h) applies to New TSCA §502(i) is similar, but
Stockholm POPs chemicals that are both Stockholm applies whenever there is a con-
Convention and POPs chemicals and LRTAP flict between any provision of
LRTAP POPs Pro- POPs chemicals. In the case of §502 applicable to a LRTAP
tocol conflict between provisions of POPs chemical and any provision
subsection (f) which provides ex- applicable to a Stockholm POPs
emptions from regulations under chemical, rather than only to pro-
the Stockholm POPs Convention, visions that offer exemptions.
and subsection (g), which pro- [§2]
vides exemptions under the
LRTAP POPs Protocol, the more
stringent provision will apply, and
application shall ensure that the
United States is in compliance
with both international agree-
ments. [§2]
Public notice of New TSCA §503(f)(6)(E) requires New TSCA §503(a) directs EPA
chemicals subject to EPA to make publicly available a to publish in the Federal Register
requirements of the list of parties to the Stockholm timely notice concerning the
Stockholm POPs POPs Convention, production- chemicals subject to the prohibi-
Convention and use-specific exemptions avail- tions specified in §502, exemp-
able to the United States under the tions from the prohibitions, any
Stockholm POPs Convention, par- disallowances of exemptions, and
ties that are permitted to use a list of any importing countries
chemicals in Annex A or B, and that are not parties to the Stock-
chemicals with no production- or holm POPs Convention but that
use-specific exemptions. have provided EPA with a certifi-
[§2] cation of intent to comply with
certain requirements of the POPs
Convention. Directs EPA to up-
date the record as necessary and to
make the record publicly avail-
able. [§2]
Removal of TSCA Section 5 amends TSCA §12(a)(1) Similar provision, but H.R. 4800
exemptions for so that the exemption it provides does not add a new subsection (c)
chemicals intended from most requirements of TSCA to TSCA §12.
for export for chemicals intended for export [§4]
will not apply to the requirements
of Title V or new TSCA §12(c).
This provision ensures that chemi-
cals produced solely for export
may be regulated under TSCA
Title V, in accord with the three
international agreements. [§5]
CRS-27
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Implementing the Section 5 adds a new subsection New TSCA §505 has the same
PIC Convention (c) to TSCA §12. New TSCA provision.
§12(c)(1) directs those who dis-
tribute in commerce for export a
chemical substance listed in An-
nex III of the PIC Convention to
comply with export conditions or
restrictions identified by EPA in a
public notice.
New TSCA §12(c)(4)(C) requires New TSCA §505(d)(3) has a simi-
EPA, with the concurrence of the lar provision, but requires consul-
Secretary of State, to provide pub- tation rather than concurrence
lic notice of chemicals listed on with the Secretary of State.
Annex III to the PIC Convention,
and of conditions or restrictions
relating to those chemicals im-
posed by importing foreign states.
New TSCA §12(c)(4)(A) directs New TSCA §505(d) has a similar
EPA to determine, with the con- provision, but requires consulta-
currence of the Secretary of State, tion rather than concurrence with
whether a chemical is banned or the Secretary of State.
severely restricted within the
United States. Requires EPA to
issue notice to the PIC Secretariat
and the public of each such deter-
mination. [§5]
No comparable provision. New TSCA §505(e) authorizes
EPA to promulgate rules to facili-
tate implementation of §505 and
to ensure compliance with the PIC
Convention. [§2]
Export notice re- New TSCA §12(c)(2) requires New TSCA §505(b) has the same
quirements exporters to notify EPA of their provision.
intent to export a chemical that is
banned or severely restricted,
listed in the PIC Convention An-
nex III, or a Stockholm POPs
Convention chemical for which
export is not prohibited by new
TSCA §502(a) or §503(e).
Such notice must be provided be- New TSCA §505(b) is similar to
tween 15 and 45 days prior to the H.R. 4591, but requires notice to
first export to each country in be provided between 15 and 30
each year of a chemical that is days prior to the first export of
banned or severely restricted, each chemical to each country in
listed in Annex III of the PIC each year.
Convention, or a Stockholm POPs
Convention chemical.
Authorizes EPA to establish alter- New TSCA §505(b) has the same
nate time frames if appropriate. provision.
CRS-28
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Export notice re- Requires EPA, within 18 months No comparable provision.
quirements (con.) after the PIC Convention enters [§2]
into force for the United States,
and within 18 months after the
Stockholm POPs Convention en-
ters into force for the United
States, to review time frames for
providing notices. [§5]
New TSCA §12(c)(4)(B) directs New TSCA §505(d)(2) has the
EPA, upon receipt of a pre-export same provision.
notice to a foreign state for a
banned or severely restricted
chemical, to determine whether it
is the first such notice in the cal-
endar year and if so, to provide a
copy to the importing foreign
state.
Content require- New TSCA §12(c)(2)(C) specifies New TSCA §505(b) has similar
ments for export the required contents of pre-export provisions, but does not require
notices notices for banned or severely re- EPA to issue a general order pub-
stricted chemicals, chemicals lished in the Federal Register
listed in Annex III of the PIC when it decides that it needs infor-
Convention, and Stockholm POPs mation other than that specified in
chemicals that may be exported. this TSCA subsection.
[§5] [§2]
Shipment copies New TSCA §12(c)(2)(D) requires New TSCA §505(b) has the same
and records of no- exporters to include a copy of the provisions.
tices most recent pre-export notice with [§2]
each shipment of a chemical listed
on Annex III of the PIC Conven-
tion or a Stockholm POPs chemi-
cal. New TSCA §12(c)(2)(E) re-
quires exporters covered by notice
requirements to maintain a copy
of each notice and other docu-
ments used to generate the notice
for at least three years following
the date on which notice is pro-
vided. [§5]
Labeling require- New TSCA §12(c)(3) requires New TSCA §505(c) has the same
ments for exports labeling of chemical substances or provisions.
mixtures that EPA has identified [§2]
as banned or severely restricted
within the United States or listed
in Annex III to the PIC Conven-
tion. [§5]
CRS-29
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Exemptions to PIC New TSCA §12(c)(6) directs EPA No comparable provision.
requirements to allow export of trace concentra-
tions without notification if EPA
finds export of such concentra-
tions does not pose a significant
threat to human health or the envi-
ronment and is not inconsistent
with the PIC Convention, the
Stockholm POPs Convention, and
the LRTAP POPs Protocol.
Exemptions to PIC Authorizes EPA to issue a notice New TSCA §505(d)(4) has similar
requirements (con.) exempting any chemical or use of provisions, but requires consulta-
a chemical from notice require- tion rather than concurrence with
ments of TSCA §12(c)(1), (2), the Secretary of State.
and (3) if EPA determines, with [§2]
concurrence of the Secretary of
State, that the exemption would be
consistent with the PIC Conven-
tion or Stockholm POPs Conven-
tion. [§5]
Consolidation of New TSCA §12(c)(5) directs EPA New TSCA §505(e) is similar, but
reporting require- to allow a single notice to satisfy it authorizes rulemaking, and does
ments TSCA pre-export notice require- not require EPA to allow a single
ments. notice.
[§5] [§2]
Harmonization of No comparable provision. New TSCA §505(f) provides that
PIC Convention and if a chemical is covered by the
Stockholm POPs Stockholm POPs Convention or
Convention LRTAP POPs Protocol and the
PIC Convention, the more strin-
gent provision will apply in the
event of a conflict. [§2]
Clarification of Ti- New TSCA §507 provides that New TSCA §506 is the same pro-
tle V Authority and TSCA Title V should not be con- vision. [§2]
Intended Effects strued to require the United States
to register for any specific exemp-
tion or any acceptable purpose
available to the United States un-
der the Stockholm POPs Conven-
tion. Neither does Title V affect
the authority of EPA to regulate a
chemical under any other law or
any other provision of TSCA
[§2]
Inspection authority Amends TSCA §11 to provide Same as H.R. 4591.
EPA with inspection authority for [§6(a)]
enforcement purposes.[§6(b)]
CRS-30
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Entry into customs No comparable provision. Section 6(b) amends TSCA §13 to
territory direct the Secretary of the Trea-
sury to refuse entry into U.S. cus-
toms territory of any chemical that
is offered for entry in violation of
Title V or a rule or order issued
under Title V. [§6(b)]
Unlawful acts Section 6(c) amends TSCA §15 to Section 5 is similar to H.R. 4591,
prohibit actions that fail or refuse but prohibits using for commercial
to comply with any requirement of purposes a chemical that was dis-
Title V or rule or order promul- tributed in commerce for export,
gated or issued under Title V. used or disposed of in violation of
States that it is unlawful to use a Title V.
chemical for commercial purposes [§5]
if it was made or distributed in
commerce in violation of Title V.
[§6(c)]
Penalties Amendments to TSCA §15 made Section 6(c) amends TSCA §16 to
by H.R. 4591, Section 6(c), make authorize civil and criminal penal-
specified violations of Title V un- ties for violations of Title V.
lawful acts, which are subject to [§6(c)]
civil and criminal penalties under
existing provisions of TSCA §16.
[§6(c)]
Enforcement and Section 6(d) amends TSCA §17. Similar, but also extends jurisdic-
seizure The jurisdiction of district courts tion of district courts over civil
is extended to cover some civil actions to restrain a violation of
actions to enforce Title V. Autho- Title V.
rizes seizure of a chemical subject
to Title V, or any article contain-
ing such chemical, if it was manu-
factured, processed, or distributed
in commerce in violation of
TSCA.
State and Local Amends TSCA §18(a)(2) to pre- Does not preempt state or local
Preemption empt state and local requirements requirements that are more strin-
applicable to a POPs or LRTAP gent than federal requirements
POPs chemical substance, for under new TSCA §502(h).
which a listing under Annex A or [§6(e)]
B to the Stockholm POPs Conven-
tion or Annex I or II to the
LRTAP POPs Protocol has en-
tered into force for the United
States, unless such requirements
are identical to the federal require-
ments, adopted under another fed-
eral law, or prohibit the use of the
chemical within the relevant juris-
diction.
[§6(e)]
CRS-31
H.R. 4800, as ordered to be
Subject H.R. 4591, as amended
reported
Citizens' civil ac- No comparable provision, but Amends TSCA §20(a) to autho-
tions TSCA §20(a) authorizes citizens rize citizens to commence civil
to commence civil action against action against alleged violators of
alleged violators of the act. Title V or rules promulgated un-
der Title V. [§6(f)]
Judicial review Section 4 amends TSCA §19 to New TSCA §502(h)(2) authorizes
authorize any person to file a peti- any person to file a petition for
tion for judicial review of a rule judicial review of a final rule or
promulgated under Title V no final decision under §502(h)(1)(B)
more than 60 days previously. within 60 days of publication of
Directs the court to set aside a rule the rule or decision. Directs the
that is "not supported by substan- court to set aside a rule or deci-
tial evidence in the rulemaking sion that is "arbitrary, capricious,
record ... taken as a whole." Gen- an abuse of discretion, or other-
erally, judicial review provisions wise not in accordance with law."
are similar to those for rules pro- Authorizes the court to award
mulgated under the other titles of costs relating to the review.
TSCA, with a few exceptions.
For any rule promulgated under No comparable provision.
new subsection 503(e), all written
comments and information re-
ceived in response to EPA notices
or orders issued under TSCA
§503(a) through (d) would be part
of the rulemaking record. And,
such rules would not be subject to
the authority provided in TSCA
§19(b) that allows a court to order
EPA to provide opportunity to
petitioners to make additional oral
submissions or written presenta-
tions available for judicial review
of the rule.
[§4]
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For other versions of this document, see http://wikileaks.org/wiki/CRS-RL33336