Federal Regulation of Chemicals in Commerce: An Overview of Issues for the 113th Congress

Federal Regulation of Chemicals

in Commerce: An Overview of Issues

for the 113th Congress

(name redacted)

Analyst in Environmental Policy

May 30, 2013

Congressional Research Service

7-....

www.crs.gov

R42879

Federal Regulation of Chemicals in Commerce: Overview of Issues for the 113th Congress

Summary

The useful properties of chemicals provide many benefits to consumers and bolster the U.S.

economy, but these benefits may come with a price, as exposure to certain chemicals can lead to

adverse effects on human health or the environment. This report briefly describes selected issues

related to regulation of chemicals in commerce by the U.S. Environmental Protection Agency

(EPA) that are of potential interest to the 113th Congress.

Concerns about the complexity, cost, and delays in regulating chemicals under the Toxic

Substances Control Act (TSCA) have prompted proposals (such as S. 1009 in the 113th Congress)

to amend the 1976 statute. Some would provide EPA with specific authority and mandates to

ensure adequate management of chemical risks. Others would amend particular provisions,

leaving most of the law intact. TSCA reform is a high priority for some in the 113th Congress.

Another issue is whether to expand or restrict EPA’s authority to require disclosure of chemical

information under the Emergency Planning and Community Right-to-Know Act (EPCRA) or

TSCA. Bills in the 113th Congress, H.R. 1921, the FRAC Act, and Section 301 of S. 332 would

require oil and gas producers to disclose identities of chemicals used in hydraulic fracturing.

Other administrative and legislative initiatives also would mandate more public disclosure.

The integrity of scientific advice provided to EPA may be another salient issue. Some Members

of Congress have expressed concern about the composition of EPA’s Science Advisory Board

(SAB). H.R. 1422 would require a rebalancing of “the scientific and technical points of view

represented.” EPA’s Integrated Risk Information System (IRIS) has been criticized by some for

being out of date and incomplete, while the process of conducting chemical risk assessments is

said to be slow. The National Research Council (NRC) made recommendations to improve IRIS

reports in 2011, and Congress directed EPA to “incorporate, as appropriate,” NRC

recommendations and to contract with the National Academy of Sciences to conduct several

reviews of IRIS assessments, including one for inorganic arsenic.

Pesticides issues generally are resolved under the Federal Insecticide, Fungicide, and Rodenticide

Act (FIFRA), which directs EPA to regulate the sale and use of pesticides through registration of

products. The 112th Congress was interested in apparent overlap between FIFRA and the Clean

Water Act (CWA). At issue is whether FIFRA is sufficient alone to ensure protection of water

quality or whether certain pesticide applications require a CWA permit. In response to a court

order, EPA issued a general permit requiring applicators to minimize pesticide discharges to

waters. House-passed H.R. 872 in the 112th Congress would have exempted aerial pesticide

application activities from water permit requirements. The Senate Committee on Agriculture,

Nutrition, and Forestry approved the bill in June 2011. Language identical to H.R. 872 is included

in the 2013 farm bill legislation (H.R. 1947) approved by the House Agriculture Committee, as

well as in H.R. 935, S. 175, and S. 802.

Another issue of potential interest is whether to amend both TSCA and FIFRA to accommodate

certain international agreements intended to reduce production and use of persistent organic

pollutants (POPs) globally. In the 113th Congress, S. 696 would add a new section to TSCA,

authorizing actions allowing U.S. implementation of the three international agreements.

Finally, as it considers appropriations, Congress may actively consider what amount of federal

grant money should be made available to address lead-based paint hazards in older homes. H.R.

1282 would streamline paperwork requirements, making it easier for people to apply for a grant.

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Federal Regulation of Chemicals in Commerce: Overview of Issues for the 113th Congress

Contents

Introduction...................................................................................................................................... 1

Issues................................................................................................................................................ 2

Amendments to the Toxic Substances Control Act (TSCA)...................................................... 2

Expansion of Disclosure Requirements ..................................................................................... 2

Safeguarding Scientific Integrity ............................................................................................... 4

Overlapping Authorities for Pesticide Discharges to Water ...................................................... 7

International Treaties ................................................................................................................. 8

Lead-Based Paint ....................................................................................................................... 9

Contacts

Author Contact Information............................................................................................................. 9

Acknowledgments ........................................................................................................................... 9

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Federal Regulation of Chemicals in Commerce: Overview of Issues for the 113th Congress

Introduction

The useful properties of thousands of chemicals provide a wide range of benefits to American

consumers and bolster the U.S. economy. These benefits occasionally come with a price,

however, as exposure to certain substances, such as lead, pesticides, or asbestos, may lead to

adverse effects on human health or the environment. Congress has enacted various laws to

manage chemical risks associated with chemical use in industrial processes and production,

agricultural practices, and residences and consumer products. Concerns about the effects of

chemicals, as well as regulation of chemicals by the U.S. Environmental Protection Agency

(EPA), continue to emerge, prompting additional congressional consideration.

This report briefly describes selected legislative issues related to chemical production, processing,

distribution, and use (including past use)—activities that generally are regulated under chemical

laws implemented by EPA.1 Such laws generally target different, often overlapping, sets of

chemicals, depending on how they are used or how people might be exposed. For example,

•

the Toxic Substances Control Act (TSCA) directs EPA to regulate industrial

chemical processes and interstate commerce in bulk chemicals;

•

the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) mandates

regulation of the sale and use of chemicals intended to control pests in agriculture

and other applications; and

•

the Emergency Planning and Community Right-to-Know Act (EPCRA)

addresses regulation of hazardous chemicals in storage or routinely or

accidentally released to the environment.

Chemical risk management laws and their implementing regulations also differ in the extent to

which they impose potential burdens on regulated entities and in the degree of protection afforded

to human health and the environment. Congress oversees EPA’s implementation of these and

other statutes and may consider new legislative proposals that would revise regulatory authority.

Selected chemical issues discussed below were considered by the 112th Congress and may be of

interest to the 113th Congress. Key issues include

•

the adequacy of TSCA for regulating potentially hazardous chemicals;

•

whether to expand information disclosure requirements under various laws;

•

how to safeguard the integrity of scientific advice;

•

overlapping statutory requirements for control of pesticides applied to surface

water;

•

whether to provide authority to implement international treaties; and

•

regulation of contractors working in older homes that contain lead-based paint.

1

Note that the issues that are the subject of this report focus on chemicals in commerce, rather than on wastes or

ambient environmental pollution; issues related to contamination of food, water, or outdoor air are beyond the scope of

this report, as are issues related to areas of federal law not administered by EPA, such as those concerning potential

risks of exposure to chemicals on the job, in certain buildings, in consumer products, or in defense applications.

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Federal Regulation of Chemicals in Commerce: Overview of Issues for the 113th Congress

Issues

Amendments to the Toxic Substances Control Act (TSCA)

The Toxic Substances Control Act (TSCA) authorizes EPA to identify potentially dangerous

chemicals in U.S. commerce and to regulate their production (including importation),

distribution, and use to prevent “unreasonable risks” to human health or the environment.2 EPA

has rarely applied the broad authority provided by TSCA, however, even though it applies to all

“chemical substances,” a term defined by the law to include lead, chlorine, plastics, and most

other elements and compounds.3 TSCA has been difficult for EPA to implement, at least in part,

because it requires EPA to justify each regulation by demonstrating that the chemical to be

regulated poses an unreasonable risk.4 Concerns about the difficulty, cost and long delays in

regulating have prompted some critics to propose statutory (as opposed to regulatory) bans of

specific chemicals.5 Other critics of TSCA have proposed amending the statute to provide EPA

with more specific authority to manage chemical risks. A few TSCA critics would rewrite TSCA

to make it more closely resemble Europe’s recently adopted law, which is attempting to phase out

more dangerous chemicals in favor of less risky substitutes and forcing manufacturers to prove

the safety of their products.6 Still others would prefer a very targeted approach to TSCA reform,

which would leave most of the statute intact.7

Senator Lautenberg introduced S. 1009, the Chemical Safety Improvement Act, in the 113th

Congress. It would rewrite TSCA, increasing EPA’s discretionary authority to gather information

about chemicals in commerce and to regulate unreasonable risks. This bill has bipartisan support,

including support from Senator Vitter, the ranking member of the Senate Committee on

Environment and Public Works. S. 1009 probably is meant to supersede Senator Lautenberg’s

earlier proposal, S. 696, the Safe Chemicals Act.

Expansion of Disclosure Requirements

Another issue that may concern the 113th Congress involves public disclosure of chemical

information. Federal laws and legislative proposals aimed at reducing human exposure to

potentially harmful chemicals often require some kind of information sharing between product

2

For a summary of the provisions of TSCA, see CRS Report RL31905, The Toxic Substances Control Act (TSCA): A

Summary of the Act and Its Major Requirements, by (name redacted).

3

The term explicitly excludes chemicals regulated under other laws, including pesticides, tobacco, nuclear material,

firearms, shells or cartridges for firearms, food, drugs, cosmetics, and medical devices.

4

For more information about implementation of TSCA, see CRS Report RL34118, The Toxic Substances Control Act

(TSCA): Implementation and New Challenges, by (name redacted).

5

For more information about TSCA reform proposals, see CRS Report R41937, Proposed Reform of the Toxic

Substances Control Act (TSCA) in the 112th Congress: S. 847 Compared with Current Law, by (name redacted).

6

For more information about the law in the European Union, see CRS Report RS22673, Chemical Regulation in the

European Union: Registration, Evaluation, and Authorization of Chemicals, by (name redacted).

7

Pat Rizzuto, “Sen. Vitter Said to Be Seeking Information on Possible Approaches to TSCA Reform,” Daily

Environment Report, October 2, 2012, Bloomberg BNA.

Dean Scott, “Agenda Full in Obama Second Term; Chemical, Water, Oil Drilling Rules Readied,” Daily Environment

Report, November 8, 2012, Bloomberg BNA.

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manufacturers or distributors and customers, clients, or potentially exposed bystanders.8 This may

consist of a public announcement in some form or a product label listing ingredients or including

written instructions for appropriate use, storage, or disposal. There are many ways in which

information must be shared under existing federal and state laws. For example, the federal

Emergency Planning and Community Right-to-Know Act (EPCRA) requires manufacturers and

certain other businesses to report to EPA annually on emissions of some 600 hazardous

chemicals. The intent of EPCRA disclosure is to inform communities about chemicals released

into the environment and to which the public might be exposed. EPA makes these reports

available to the general public in the form of a Toxic Release Inventory (TRI).9

Congress enacted laws like EPCRA in part because required disclosure of information has been

seen by some as a relatively benign form of regulation (compared to prohibition of production,

for example). Information provision theoretically works with the free market, allowing consumers

or bystanders who receive information to make informed choices. For example, disclosure may

discourage consumers from using certain products containing chemicals perceived to be

hazardous and promote substitution of “safer” products.

The regulated community, on the other hand, often argues that required information disclosure

can imply risk where little or none exists, unfairly discouraging commerce in and use of,

chemicals that are safe when used as intended. In addition, affected industries sometimes object

to such requirements because the information disclosed might be useful to business competitors.

Finally, tracking and reporting of releases consumes resources that might otherwise go to business

development.

Under the Obama Administration EPA has expanded public access to information about

chemicals in commerce.10 For example, in May 2012, the Bureau of Land Management (BLM) in

the Department of the Interior proposed revisions to its oil and natural gas development rules in

response to the increased use of hydraulic fracturing on federal and Indian lands. The proposal

would require public disclosure of chemicals used during hydraulic fracturing, tighten

requirements related to well-bore integrity, and add requirements for managing water used and

produced in hydraulic fracturing operations.11 In response to extensive public comments on the

proposed rule, in May 2013, BLM published a Supplemental Notice of Proposed Rulemaking

(SNPR) and Request for Comment.12 In the SNPR, BLM requests comments on the multiple

changes in the proposed rule and provides 30 days for public comment.

EPA recently reviewed and released information in its files when chemical manufacturers no

longer have met EPA requirements for protection of confidential business information (CBI)

8

Disclosure of information about chemical properties to workers is required by the Occupational Safety and Health

Administration’s Hazard Communication Standard (29 CFR 1910.1200), which was promulgated under the authority of

the Occupational Safety and Health Act (29 U.S.C. §651 et seq.).

9

For more information about EPCRA, see CRS Report RL32683, The Emergency Planning and Community Right-toKnow Act (EPCRA): A Summary, by (name redacted).

10

However, some have argued that the Administration has not always disclosed information on demand. See, for

example, the article on Bloomberg.com, “Obama Cabinet Flunks Disclosure Test with 19 in 20 Ignoring Law,” by Jim

Snyder and Danielle Ivory, September 27, 2012, http://www.bloomberg.com/news/2012-09-28/obama-cabinet-flunksdisclosure-test-with-19-in-20-ignoring-law.html.

11

Oil and Gas; Well Stimulation, Including Hydraulic Fracturing, on Federal and Indian Lands, 77 Federal Register

27691, May 11, 2012.

12

78 Federal Register 31636, May 24, 2013.

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Federal Regulation of Chemicals in Commerce: Overview of Issues for the 113th Congress

under TSCA.13 In addition, EPA responded favorably (in part) to a petition filed under TSCA

Section 21, agreeing to initiate rulemaking to require submission of data on environmental or

health effects and exposures to hydraulic fracturing chemicals.14 EPA expects that its rule “would

focus on providing aggregate pictures of the chemical substances and mixtures used in hydraulic

fracturing” to complement the well-by-well disclosure programs of many states.15

Further information disclosure by EPA under EPCRA might be on the horizon in response to a

citizen petition. Seventeen environmental advocacy groups petitioned EPA to require additional

public reporting of chemical releases by the oil and gas producers.16 Currently, oil and gas

production is not covered by the reporting requirements of EPCRA, but the growth of hydraulic

fracturing as a means of oil and gas production and the use of certain chemicals in that process

may make this petition and EPA deliberations more salient.

In the 113th Congress, H.R. 1921, the FRAC Act, and Section 301 of S. 332 would require a

person conducting hydraulic fracturing operations to disclose to the state (or to the EPA

Administrator if he or she has primary enforcement responsibility in such state) the chemicals

intended for use in underground injections before the commencement of such operations and the

chemicals actually used after the end of such operations, and would require a state or the

Administrator to make such disclosure available to the public.17

S. 1009, which would reform TSCA, would narrow the conditions under which data about

chemical substances may be treated as confidential business information. In addition, S. 1009

would increase public disclosure requirements related to chemical hazards.

Safeguarding Scientific Integrity

EPA relies on input from scientists outside the agency to ensure that its regulatory decisions are

based on sound science. EPA receives this input in various ways, but one common mechanism is

through expert panels. Panels are formed to advise EPA staff on scientific issues and the state of

knowledge and to peer review draft EPA documents, on request, for accuracy and comprehensiveness.18 Many panels are formed to provide advice on particular, often technical, topics, but

13

EPA, Existing Chemicals, “Increasing Transparency in TSCA,” http://www.epa.gov/oppt/existingchemicals/pubs/

transparency.html.

14

EPA’s response to the petition is online at http://www.epa.gov/oppt/chemtest/pubs/

EPA_Letter_to_Earthjustice_on_TSCA_Petition.pdf.

15

Ibid. For more information about how EPA is addressing hydraulic fracturing, see EPA’s website “Natural Gas

Extraction - Hydraulic Fracturing” at http://www2.epa.gov/hydraulicfracturing.

16

Alan Kovski, “Groups Ask EPA to Require TRI Reporting for Chemicals in Oil, Gas Extraction Work,” Daily

Environment Report, October 25, 2012, Bloomberg BNA.

Earthworks, “Petition to Add Oil and Gas Extraction to the Toxics Release Inventory,”

http://www.earthworksaction.org/library/detail/petition_to_add_oil_gas_extraction_to_TRI#.UKKzqdWgXXs.

17

For more on disclosure of chemicals used in hydraulic fracturing, see CRS Report R42461, Hydraulic Fracturing:

Chemical Disclosure Requirements, by (name redacted) and (name redacted). For more information about the impact of

such chemicals on drinking water, see CRS Report R41760, Hydraulic Fracturing and Safe Drinking Water Act

Regulatory Issues, by (name redacted) and (name redacted).

18

For discussion of the issues surrounding one scientific panel, see CRS Report RL33807, Air Quality Standards and

Sound Science: What Role for CASAC?, by (name redacted).

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scientific panels also may be very general, such as EPA’s Science Advisory Board (SAB) which

oversees numerous more specialized panels.19

Although these panels are intended to provide scientific advice, rather than policy direction, the

information they provide often has strong implications for EPA’s policy decisions. In such cases,

the advice may be controversial, and some, especially critics of the policy decisions, may

question whether panel members are providing objective advice in an impartial manner. For this

reason, Congress requires that the SAB and most other advisory panels operate under the Federal

Advisory Committee Act (FACA).20 FACA requires that committee membership be “fairly

balanced in terms of the points of view represented,” and advice provided by committees be

objective and accessible to the public.21 Panel members are subject to applicable ethical standards

(5 Code of Federal Regulations Part 2635) and are required to file financial disclosure reports and

to take annual ethics training.22

However, some Members in the 112th and 113th Congresses questioned the balance among SAB

members with respect to their sources of research funding. H.R. 1422 in the 113th Congress would

amend the Environmental Research, Development, and Demonstration Authorization Act of

1978,23 which created the SAB. The proposed amendment would require that “the scientific and

technical points of view represented on and the functions to be performed by the Board are fairly

balanced among the members of the Board.” To that end, the bill proposed to revise the

nominating process and composition of the Board in several respects, the effect of which

appeared intended to increase representation of state, local, and tribal governments and of

potentially regulated entities, while disclosing potential financial conflicts of interest among

scientists who might benefit from EPA grants, contracts, cooperative agreements, or other

financial assistance.

EPA also solicits scientific input through workshops, hearings, and stakeholder meetings. The

purpose of these is usually to explore a topic or to ensure input from experts with differing

perspectives, often including people with practical experience as well as researchers and

academics. Input often is received from such groups at several points during a deliberative

process, for example, when EPA is developing a hazard or risk assessment for a chemical, as it

does for its Integrated Risk Information System (IRIS). IRIS stores and integrates scientific

information relevant to human health risk assessment for chemicals of particular regulatory

interest.24 Originally intended for internal use, IRIS now is widely cited and underpins many

federal, state, and local regulations.25 Many criticize IRIS, however, for being scientifically out of

date and incomplete.26 In addition, critics agree that the IRIS process for developing definitive

19

For more about the Science Advisory Board, see EPA’s website at http://yosemite.epa.gov/sab/sabpeople.nsf/

WebCommittees/BOARD, or the committee charter at http://yosemite.epa.gov/sab/sabproduct.nsf/WebBOARD/

currentcharter?OpenDocument.

20

5 U.S.C. Appendix—Federal Advisory Committee Act.

21

For more information about how the Federal Advisory Committee Act constrains operations of advisory committees,

see CRS Report R40520, Federal Advisory Committees: An Overview, by (name redacted).

22

EPA Ethics Advisory 2008-02, October 21, 2008, http://www.epa.gov/osp/bosc/pdf/EthicsAdvisory.pdf.

23

42 U.S.C. 4365.

24

For basic information about IRIS, see EPA’s website at http://www.epa.gov/iris/.

25

Paul Anastas, EPA Assistant Administrator of Research and Development, testimony before the Subcommittee on

Oversight, Committee on Science, Space and Technology, U.S. House of Representatives, July 14, 2011.

26

Governmental Accountability Office, Chemical Assessments: Challenges Remain with EPA’s Integrated Risk

Information System Program, GAO-12-42, December 2011.

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Federal Regulation of Chemicals in Commerce: Overview of Issues for the 113th Congress

toxicity assessments of chemicals is too slow and needs to be streamlined.27 Some reportedly

would prefer fewer reviews of IRIS assessments by other federal agencies, while others prefer

earlier involvement of stakeholders, to “get it right the first time.”28 The Natural Resources

Defense Council (NRDC) and the Science and Environmental Health Network released an issue

paper that calls for greater emphasis in IRIS risk assessments on other recommendations of the

NAS:

•

incorporation of human variability with respect to vulnerability to harm from

toxic chemicals;

•

reliance on science-based assumptions when information is absent;

•

consideration of risks due to multiple chemical exposures; and

•

assumption that low levels of exposure impart risks, unless there is good

evidence otherwise.29

The House Subcommittee on Oversight, Committee on Science, Space and Technology, held a

hearing on the issue July 14, 2011. At that hearing, the EPA Assistant Administrator for Research

and Development testified that

The IRIS program is now entirely managed by EPA and EPA strives to ensure that all of its

science assessments undergo rigorous, open and independent external peer review and that

multiple opportunities exist for public review and comment. Additionally, changes in IRIS

assessments that occur during the interagency and public process are documented and

explained, ensuring a transparent final product.

Nevertheless, EPA continues to revise its process to meet criticisms leveled by the National

Academy of Sciences (NAS) in its April 2011 response to EPA’s draft assessment of

formaldehyde.30 NAS indicated that the draft assessment “was not prepared in a logically

consistent fashion, lacks clear links to an underlying conceptual framework, and does not

sufficiently document methods and criteria used to identify evidence for selecting and evaluating

studies.”31 The National Research Council (NRC) recommended that EPA

•

more rigorously edit its assessment documents;

•

more fully discuss its methods;

•

develop concise statements of its criteria for identifying, selecting, excluding, or

emphasizing particular studies for hazard assessment and deriving toxicity

values, using uniform approaches to evaluate the strengths and weaknesses of

critical studies; and

27

Ibid.

Patrick Ambrosio, “Industry, Environmental Groups Disagree on Strategies to Improve IRIS Program,” Daily

Environment Report, November 15, 2012, http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=28602190&

vname=dennotallissues&fcn=11&wsn=498378500&fn=28602190&split=0.

29

Jennifer Sass, SEHN/NRDC issue paper: Better risk assessment to better protect health, posted on Jennifer Sass’s

Blog, February 22, 2012, http://switchboard.nrdc.org/blogs/jsass/nrdc_issue_paper_better_risk_a.html.

30

National Research Council, “Review of the Environmental Protection Agency’s Draft IRIS Assessment of

Formaldehyde,” 2011, National Academy of Sciences, Washington DC.

31

News from the National Academies, April 8, 2011.

28

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•

prepare standardized evidence tables to accompany descriptions of the studies

used.32

The 112th Congress addressed this issue in the conference report for the Consolidated

Appropriations Act, P.L. 112-74, which directed EPA to “incorporate, as appropriate” the NRC

recommendations into the IRIS risk assessment process.33 In addition, EPA was required to

include documentation describing how those recommendations were addressed in draft

assessments released in FY2012, and to contract with the National Academies to conduct up to

three reviews of IRIS assessments that EPA proposed to make final, including an assessment of

inorganic arsenic. Congress directed NAS to complete its reviews within 18 months of the

contracted date. Finally, the conference report expressed the view that “future IRIS assessments

must not only be grounded in sound, objective, and peer-reviewed science and methodologies but

should also provide risk managers with realistic values that will result in enhanced protection of

human health.”34 The National Academies Committee on Inorganic Arsenic held a meeting to

discuss EPA’s draft inorganic arsenic assessment on May 29 and 30, 2013.

Congress may oversee EPA’s implementation of these requirements or might otherwise revisit this

issue in the 113th Congress.

Overlapping Authorities for Pesticide Discharges to Water

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requires EPA to regulate the

sale and use of pesticides in the United States through registration and labeling and to restrict

usage of pesticides as necessary to prevent unreasonable adverse effects on people and the

environment, taking into account the costs and benefits of various pesticide uses. The sale of any

pesticide is prohibited in the United States unless it is registered (licensed) and labeled to indicate

approved uses and restrictions. It is a violation of the law to use a pesticide in a manner that is

inconsistent with the label instructions. The 113th Congress may continue to examine apparent

overlapping jurisdiction between provisions of FIFRA and the Clean Water Act (CWA). The CWA

is the principal federal law governing pollution in the nation’s surface waters.

In recent years, federal courts have held that aerial application of a pesticide over and into U.S.

waters requires authorization under the CWA’s National Pollutant Discharge Elimination System

(NPDES) permit program, even when the pesticide use meets other requirements of federal law,

including FIFRA. These decisions drew the attention of many pesticide applicators, including

public health entities (such as mosquito control districts), concerned with how the rulings might

affect their need to control pests associated with diseases such as the West Nile virus. In

November 2006, EPA finalized a rule seeking to resolve the conflict over the regulatory scope of

the CWA and FIFRA related to pesticide use, in light of the recent litigation, by promulgating

clarifying circumstances under which a CWA permit is or is not required for activities carried out

pursuant to FIFRA. However, in 2009, a federal court rejected EPA’s argument that residual and

32

Thomas A. Burke, Chair of the National Academy of Sciences Committee on Improving Risk Analysis Approaches

Used by the U.S. EPA, testimony before the Subcommittee on Environment and the Economy, Committee on Energy

and Commerce, U.S. House of Representatives, October 6, 2011.

33

U.S. Congress, Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2012,

(Division E, Title II, Environmental Protection Agency, Science and Technology), to accompany H.R. 2055, December

15, 2011, 112th Cong., 1st Sess., H.Rept. 112-331.

34

Ibid.

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excess pesticides do not require a CWA permit because they are adequately regulated by FIFRA,

and the court vacated the rule.35 In June 2009, the federal court granted an EPA request for a delay

in the effective date of the court’s ruling. In response, EPA developed a general CWA permit for

pesticide applications covered by the ruling. General permits minimize regulatory burdens on

pesticide applicators and state permitting officials, but there still is significant concern about the

impact of EPA’s actions.

EPA issued the pesticide general permit on October 31, 2011, as required by the court.36 EPA

estimated that the universe of affected activities subject to CWA permits initially would be

approximately 5.6 million applications annually, which would be performed by 365,000

applicators covering four use patterns: (1) mosquito and other flying insect pest control; (2)

aquatic weed and algae control; (3) aquatic nuisance animal control; and (4) forest canopy pest

control. Under the final permit, pesticide discharges that occurred before January 12, 2012, were

automatically covered, but those occurring after that date have to apply for coverage. EPA and

states are now implementing the permit requirements.37

In spite of EPA’s general permit in response to the 2009 court ruling, Congress has considered

legislation to affirm that a CWA permit is not required for use of FIFRA-approved pesticides. In

the 112th Congress, the House passed H.R. 872, a bill that would amend FIFRA and the CWA to

provide that neither EPA nor a state may require a CWA permit for discharge of a pesticide whose

use has been authorized pursuant to FIFRA. The Senate Agriculture Committee approved the bill

without amendment in June 2011. Language identical to H.R. 872 is included in the 2013 farm

bill legislation (H.R. 1947) approved by the House Agriculture Committee. Similar proposals

have been introduced in the 113th Congress (H.R. 935, S. 175, and S. 802).38

International Treaties

Some older pesticides are persistent organic pollutants (POPs) that are global contaminants of

concern to many nations. The United States has signed three international agreements to reduce

the production and use of POPs and to regulate their trade and disposal. President George W.

Bush submitted two of these agreements, which are formal treaties, to the Senate for advice and

consent, where they will remain pending Senate action. If the Senate consents, and if Congress

passes legislation needed to implement the treaties and the executive agreement in the United

States, then the treaties could be ratified and the agreements would become binding U.S. law.

President Obama also supports ratification,39 but two U.S. statutes are inconsistent with the

agreements: TSCA and FIFRA. Congress has considered but has not enacted proposals to amend

35

National Cotton Council of America v. U.S. Environmental Protection Agency, 553 F.3d 927 (6th Cir. 2009).

U.S. Environmental Protection Agency, “Final National Pollutant Discharge Elimination System (NPDES) Pesticide

General Permit for Point Source Discharges From the Application of Pesticides; Notice of final permit,” 76 Federal

Register 68750-68756, November 7, 2011.

37

The EPA pesticide general permit applies in six states where EPA is the permitting authority (Alaska, Idaho,

Massachusetts, New Hampshire, New Mexico, and Oklahoma), the District of Columbia, most U.S. territories, and on

Indian tribal lands. Elsewhere, states have developed permits comparable to the federal permit.

38

For more information on this issue, see CRS Report RL32884, Pesticide Use and Water Quality: Are the Laws

Complementary or in Conflict?, by (name redacted).

39

Elana Schor, “Obama Admin Steps Up Pressure to Ratify Treaties on Toxics,” New York Times, September 24, 2010,

http://www.nytimes.com/gwire/2010/09/24/24greenwire-obama-admin-steps-up-pressure-to-ratify-treati-73636.html.

36

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Federal Regulation of Chemicals in Commerce: Overview of Issues for the 113th Congress

the statutes.40 S. 696 in the 113th Congress would add a new section to TSCA authorizing actions

that would allow U.S. implementation of the three international agreements.

Lead-Based Paint

Another issue before Congress relates to chemical contamination from lead-based paint, which is

banned by the Consumer Product Safety Commission but remains in older homes, where it may

be hazardous to young children. Congress amended TSCA to establish a grant program in 1992 to

assist states in reducing lead-based paint hazards in private and federally assisted residences. The

problem of lead-based paint hazards, although improved, has not been eliminated. Thus, Congress

annually appropriates more than $100 million to the grant program, which is administered

through the Department of Housing and Urban Development. Congress annually adjusts the

parameters of grant programs to reflect its priorities and is likely to do so again in the 113th

Congress.41

A bill introduced in the 113th Congress, H.R. 1282, would extend the categories of eligible grant

recipients to include families living in all housing, including efficiency apartments, and to

streamline paperwork requirements, making it easier to apply for a grant.

Author Contact Information

(name redacted)

Analyst in Environmental Policy

#redacted#@crs.loc.gov, 7-....

Acknowledgments

This report was written by (name redacted), who has retired from CRS.

40

For more information about these international treaties, see CRS Report RS22379, Persistent Organic Pollutants

(POPs): Fact Sheet on Three International Agreements, by (name redacted).

41

For more on this issue, see CRS Report RS21688, Lead-Based Paint Poisoning Prevention: Summary of Federal

Mandates and Financial Assistance for Reducing Hazards in Housing, by (name redacted).

Congressional Research Service

9

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