Implementing International Agreements on Persistent Organic Pollutants (POPs): Proposed Amendments to the Toxic Substances Control Act

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.

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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-pfurans (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:

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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

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“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.

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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/].

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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].

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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:

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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

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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.

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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.

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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

Subject

H.R. 4591, as amended

H.R. 4800, as ordered to be

reported

Definitions

Section 2 adds a new Title V to

TSCA. New TSCA §501 includes the following definitions:

Same as H.R. 4591.

LRTAP POPs chemical substance or

mixture (hereafter,

LRTAP POPs

chemicals)

Any chemical listed in Annex I or

II to the LRTAP POPs Protocol.21

These include aldrin, chlordane,

chlordecone, DDT, dieldrin,

endrin, heptachlor, hexachlorobenzene (HCB), hexabromobiphenyl (HBB),

hexachlorocyclohexane (HCH),

mirex, PCBs, toxaphene, and “any

other ... that is listed.”

Same as H.R. 4591.

POPs chemical substance or mixture

(hereafter, POPs

chemicals)

Any chemical listed in Annex A or

B to the Stockholm POPs Convention. These include aldrin, chlordane, DDT, dieldrin, endrin,

heptachlor, HCB, mirex, PCBs,

toxaphene, and “any other ... that

is listed.” [§2]

Same as H.R. 4591.

[§2]

Prohibitions for currently listed POPs

and LRTAP POPs

chemicals

New TSCA §502(a) prohibits

manufacture, processing, distribution in commerce for export, use,

and disposal, except as otherwise

provided within Title V, of aldrin,

chlordane, chlordecone, DDT,

dieldrin, endrin, HCH, heptachlor,

HCB, HBB, mirex, and

toxaphene.

[§2]

Similar to H.R. 4591, but these

prohibitions are subject to subsections (c) and (d) which provide

exemptions under the international

agreements, and subsection (i)

which provides for harmonization

between the agreements, and the

relevant provisions of the Stockholm POPs Convention and

LRTAP POPs Protocol, notwithstanding 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

Subject

Authority to regulate

Exemptions from

prohibitions for currently listed chemicals

H.R. 4591, as amended

H.R. 4800, as ordered to be

reported

No comparable provision.

New TSCA §502(j) authorizes

EPA to issue regulations “as necessary to implement” §502 (which

implements the Stockholm POPs

Convention and the LRTAP POPs

Protocol.)[§2]

New TSCA §502(c) authorizes

EPA to amend or promulgate regulations for PCBs under TSCA

§6(e) or other applicable federal

law for the purpose of U.S. compliance with provisions of the

Stockholm POPs Convention or

the LRTAP POPs Protocol. [§2]

No specific provision.

New TSCA §502(b) broadly authorizes EPA to promulgate regulations providing specific exceptions to the prohibitions in

§502(a), where not inconsistent

with U.S. obligations under the

Stockholm POPs Convention or

the LRTAP POPs Protocol.

No comparable provision.

New TSCA §503(f) and (g) exempt from the prohibitions in

§502(a) those activities with respect to POPs chemicals that are

consistent with either a “use-specific exemption” or “an acceptable

purpose”available to the United

States under Annex A or B to the

Stockholm POPs Convention, or

“an allowed restricted use or condition” available to the United

States under Annex I or II to the

LRTAP POPs Protocol, as determined 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.)

New TSCA §502(c) and (d) provide authority to EPA to provide

exemptions from the prohibitions,

but rules must be promulgated

under the regulatory criteria of

new TSCA §502(h) (see below) in

consultation, rather than concurrence, with the Secretary of State.

Rules will not apply to specified

categories of chemicals which appear to be consistent with those

exempted by the Stockholm POPs

Convention or the LRTAP POPs

Protocol, such as chemicals that

are unintentional trace contaminants in products or articles. [§2]

Similar to H.R. 4591, but adds the

condition that such exemptions

“would, as a result, not prevent the

United States from complying

with the obligations of the United

States” under the Stockholm POPs

Convention or the LRTAP POPs

Protocol. [§2]

CRS-18

H.R. 4800, as ordered to be

reported

Subject

H.R. 4591, as amended

Exemptions (con.)

Exempts production of HCH, use

of technical HCH as an intermediate in chemical manufacturing,

and use of lindane for seed treatment and public health, unless

EPA by rule restricts such exemption consistent with an amendment

to the LRTAP POPs Protocol.

Exempts production or use of

HCH that complies with restrictions and conditions specified for

HCH in Annex II to the LRTAP

POPs Protocol.

Also exempt is any POPs chemical or LRTAP POPs chemical that

has become waste that is “otherwise regulated under Federal

law.”

Exempts any chemical that has

become waste that is managed in a

manner consistent with Article 6

of the Stockholm POPs Convention, and any LRTAP POPs chemical 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 concurrence of the Secretary of State) to

grant exemptions from rules on its

own initiative or in response to a

petition, consistent with authorized exemptions under the

LRTAP POPs Protocol. Exemptions must be withdrawn if no longer consistent with the conditions

requisite to them.

[§2]

Similar to H.R. 4591, but requires

EPA consultation with the Secretary of State, rather than the Secretary’s concurrence. If an exemption is no longer authorized by the

United States, it is unlawful for

anyone to manufacture, process,

distribute in commerce for export,

or use a LRTAP POPs chemical in

the manner authorized by such

exemption. [§2]

Section 3 amends TSCA §6(e), to

add two new subparagraphs prohibiting exemptions from EPA

rules restricting the manufacture,

processing, distribution in commerce, or use of any PCB, unless

such activity is authorized by rule

under new TSCA §503(f) or (g),

which provide exemptions, and

subject to §503(h), which harmonizes any conflicts.

Section 3 amends TSCA §6(e), to

add one new subparagraph prohibiting exemptions from EPA rules

restricting the manufacture, processing, distribution in commerce,

or use of any PCB, unless such

activity is authorized by rule under new TSCA §502(c) or (d),

which provide exemptions, and

subject to §502(h), which establishes the regulatory criteria.22

Section 3 also prohibits distribution in commerce for export of

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 purpose of environmentally sound

disposal, to the extent authorized

by federal law). [§3]

Same as H.R. 4591.

[§3]

PCBs

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

reported

Subject

H.R. 4591, as amended

Procedure for considering a proposal

to add a chemical by

amending an annex

to an agreement:

New TSCA §503(a) requires EPA

within 60 days to publish in the

Federal Register a notice and request for public comment, if under

Article 8 of the Stockholm POPs

Convention, 1) the POPs Review

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 proposal should proceed (under Article 8, ¶5); or if, under the LRTAP

POPs Protocol, a party submits a

risk profile in support of a proposal to list a new chemical.

New TSCA §502(e) is similar to

H.R. 4591, but requires publication within 45 days.

Requires notice to include:

1) identity of the chemical;

2) a summary of the criteria applied and process used to consider

the proposal or profile for listing a

new chemical; 3) a summary of

the committee or conference decision and its basis; and 4) a summary of how the chemical is regulated under U.S. law. [§2]

Similar to H.R. 4591, but does not

require a summary of how the

chemical is regulated under U.S.

law. In addition, requires a request for information and comment relevant to the listing decision. (See “Information Provision” below.)

[§2]

New TSCA §503(b) requires EPA

within 60 days to publish a notice

in the Federal Register and to provide for public comment, if under

Article 8 of the Stockholm POPs

Convention, 1) the POPs Review

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 Protocol, the Executive Body

(LRTAP Convention Article 10)

determines that further consideration is warranted and requires

technical reviews (under Executive Body Decision 1998/2).

New TSCA §502(f) is similar to

H.R. 4591, but EPA must publish

within 45 days.

Requires notice to include 1) identity of the chemical; 2) a summary

of the committee or conference

decision, or the Executive Body

determination and its basis; 3) a

summary of comments received in

response to the first EPA notice;

and 4) solicitation for comments

and information regarding any

present or planned production or

use of the chemical. [§2]

Similar to H.R. 4591, but does not

require a summary of the comments received in response to the

first public notice. In addition,

requests information on the potential impact of various risk management approaches on minority and

low-income populations.

[§2]

First notice

Procedure for considering a proposal

to add a chemical by

amending an annex

to an agreement:

Second notice

CRS-20

H.R. 4800, as ordered to be

reported

Subject

H.R. 4591, as amended

Procedure for considering a proposal

to add a chemical by

amending an annex

to an agreement:

New TSCA §503(c) requires

EPA to publish a notice in the

Federal Register and to provide

for public comment within 60

days, if under Article 8, ¶9 of the

Stockholm POPs Convention, the

POPs Review Committee recommends that the conference consider making a listing decision, or

under the LRTAP POPs Protocol,

when a technical review of a proposal to list a chemical is complete.

New TSCA §502(g) is similar to

H.R. 4591, but requires publication within 45 days.

Requires notice to include a summary of 1) the recommendation

and its basis, or the technical review; 2) any control measures

proposed or that exist under U.S.

laws; and 3) any public comments

received in response to the second

EPA notice. [§2]

Similar to H.R. 4591, but no summary is required of control measures that exist under U.S. laws or

of public comments received in

response to the second EPA notice.

[§2]

New TSCA §503(d) authorizes

EPA to issue a general order in

the Federal Register requiring any

manufacturer, processor, distributor in commerce for export, or

disposer of a chemical that is subject to a first, second, or third public notice requirement under

§503(a), (b), or (c), to submit to

EPA information “that is known

or readily obtainable to that person” to assist the agency in evaluating the case for adding the

chemical.

New TSCA §§502(e)(4) and

502(f)(4) require manufacturers,

processors, distributors in commerce for export, and disposers of

a chemical that is subject to a first

or second public notice requirement under §502(e) or (f), within

60 days of the publication of such

notice to provide to EPA information “that is known or readily obtainable to that person” to assist

the agency in evaluating the case

for adding the chemical.

Authorizes EPA to require specified information.

Specifies the information to be

provided, which is similar to information that may be requested

under H.R. 4591.

Authorizes EPA, with the concurrence of the Secretary of State, to

require information updates.

[§2]

Similar to H.R. 4591, but EPA is

required only to consult with the

Secretary of State, rather than to

obtain concurrence. Also authorizes EPA, after the initial deadline for information submission, to

require information from anyone

who begins manufacturing, processing, distributing in commerce

for export, or disposing of a chemical proposed for listing. [§2]

Third notice

Information Collection

CRS-21

Subject

H.R. 4591, as amended

Regulations for

chemicals added by

amendment of an

annex to the Stockholm POPs Convention or LRTAP

POPs Protocol

If an amendment listing a chemical is added to Annex A or B to

the Stockholm POPs Convention

or Annex I or II to the LRTAP

POPs Protocol, and the Administration does not deposit an instrument of ratification, acceptance,

accession, or approval of that

amendment within one year, new

TSCA §503((k) requires EPA 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.

New TSCA §503(e)(1) authorizes

EPA to issue or modify rules to

prohibit or restrict U.S. manufacture, processing, distribution in

commerce for export, use, or disposal for any chemical that is

added by an amendment to Annex

A or B to the Stockholm POPs

Convention or Annex I or II to the

LRTAP POPs Protocol.

This authority to issue rules is

granted only “to meet, in whole or

in part, the obligations of the

United States under the Stockholm

POPs Convention or LRTAP

POPs Protocol if the United States

were to consent to be bound for

that applicable amendment.”

[§2]

Authority/

Requirement

H.R. 4800, as ordered to be

reported

New TSCA §502(h) requires EPA

to publish in the Federal Register

within one year of the addition of

a chemical by an amendment to

Annex A or B to the Stockholm

POPs Convention or Annex I or II

to the LRTAP POPs Protocol either —

(1) a proposed rule to prohibit or

restrict U.S. manufacture, processing, distribution in commerce for

export, use, or disposal for such

chemical; or

(2) a statement that —

(A) a proposed rule has been

issued under other federal law to

prohibit or restrict U.S. manufacture, processing, distribution in

commerce for export, use, or disposal for the added chemical; and

a final rule will be issued within

two years of the publication date

of the proposed rule; or

(B) additional regulation is not

necessary, because the chemical

already is regulated in the United

States; or

(3) 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.

Within two years of the date of

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

Subject

H.R. 4591, as amended

H.R. 4800, as ordered to be

reported

Standard

New TSCA §503(e)(1) authorizes

EPA to issue or modify rules “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.” Costs and benefits include both qualitative and quantitative costs and benefits.

[§2]

New TSCA §502(h)(1) requires

that any proposed or final rule

(under TSCA or any other federal

law) or existing regulation identified in a statement that is published by EPA to satisfy the provisions of new TSCA §502(h) “at a

minimum implements the control

measures specified for the chemical ... in Annex A and B of the

[Stockholm] POPs Convention

and Annex I and II to the LRTAP

POPs Protocol.” A proposed or

final rule promulgated under subsection (h) must protect against

“significant adverse human health

and environmental effects.”

[§2]

Analysis

New TSCA §503(e)(2) requires

EPA to consider effects 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 ... regulation,” 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 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.

New §503(e)(4) requires that assessments 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 scientific information, including peerreviewed studies, in the

rulemaking record.”

No comparable provision, but

EPA would be conducting analyses of risks, costs, and benefits,

including impacts on small entities

and responding to public comments during the rulemaking procedure, in compliance with Executive Order 12866, the Administrative Procedure Act (5 U.S.C.

§553), and the Regulatory Flexibility Act, as amended by the

Small Business Regulatory Enforcement Fairness Act, (5 U.S.C.

§§ 601 et seq).

CRS-23

Subject

H.R. 4591, as amended

H.R. 4800, as ordered to be

reported

Analysis (con.)

New §503(e)(3) authorizes EPA

to consider recommendations of

the POPs Review Committee and

the conference listing decision

(under the Stockholm POPs Convention), any technical review

conducted pursuant to the Executive Body Decision 1998/2 and

listing decision (under the LRTAP

POPs Protocol), and information

submitted by the United States in

support of a listing decision. [§2]

No comparable provision, but

EPA does consider relevant views

of international bodies when promulgating rules implementing international treaties to which the

United States is a party. See, for a

recent example, 70 Federal Register 25727, May 13, 2005, in

which EPA discusses the views of

parties with respect to exemptions

allowed under the Montreal Protocol.

Rulemaking procedure

No comparable provision.

States that no other rulemaking

procedure under TSCA applies to

rules promulgated under TSCA

§502(h).

No comparable provision.

Requires promulgation of rules

using the notice and comment procedure specified in Title V, Section 553, of the U.S. Code. [§2]

Rules may not take effect until the

United States has consented to be

bound by the amendment.

Same provision. [§2]

New TSCA §504 states that it is

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]

No comparable provision.

New TSCA §506 states that requirements to comply with provisions of the Stockholm POPs Convention, LRTAP POPs Protocol,

or PIC Convention may take effect only after the United States

has consented to be bound by the

amendment. [§2]

New TSCA §507 is similar.

[§2]

Rules tied to amendment’s entry into

force for the United

States

Effective date of

requirements

CRS-24

Subject

H.R. 4591, as amended

H.R. 4800, as ordered to be

reported

Prohibitions for

chemicals added by

amending Annex A

or B to the Stockholm POPs Convention or Annex I or II

to the LRTAP POPs

Protocol

No comparable provision.

New TSCA §502(b) prohibits

manufacture, processing, distribution in commerce for export, use,

and disposal inconsistent with regulations promulgated under subsection (h), of “any other chemical

... listed” in Annex A or B to the

Stockholm POPs Convention or

Annex I or II to the LRTAP POPs

Protocol, subject to subsections

(c) and (d) which provide exemptions under the international

agreements, and subsection (i)

which provides for harmonization

between the agreements, and the

relevant provisions of the Stockholm POPs Convention and

LRTAP POPs Protocol, notwithstanding any other provision of

law.” [§2]

Exemptions to regulations for chemicals proposed to be

added by amending

an annex of the

Stockholm POPs

Convention or

LRTAP POPs Protocol

Exemptions provided by new

TSCA §503(f) and (g) for currently listed Stockholm POPs

Convention and LRTAP POPs

Protocol chemicals, apply also to

chemicals newly added to an annex of the Stockholm POPs Convention or LRTAP POPs Protocol.

[§2]

Exemptions provided by new

TSCA §502(c) and (d) for currently listed Stockholm POPs

Convention and LRTAP POPs

Protocol chemicals, apply also to

chemicals newly added to an annex of the Stockholm POPs Convention or LRTAP POPs Protocol.

[§2]

Protection from information disclosure

requirements

No comparable provision, but

TSCA §14 currently applies to all

information obtained “under this

Act.” TSCA §14 generally protects trade secrets while allowing

disclosure to U.S. employees and

for the purpose of protecting

health or the environment against

an unreasonable risk of injury.

New TSCA §503(c) explicitly

provides that information obtained

by EPA under TSCA Title V will

be subject to TSCA §14.

[§2]

Source categories

for Annex C chemicals

New TSCA §503(i) requires public notice and opportunity for public comment if parties to the

Stockholm POPs Convention decide 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]

No comparable provision.

CRS-25

Subject

H.R. 4591, as amended

H.R. 4800, as ordered to be

reported

Action plans for

dibenzo dioxins,

dibenzo furans,

HCB, and PCBs

New TSCA §503(j) requires EPA

within 90 days to issue a public

notice and provide an opportunity

for public comment, if the United

States 1) develops an action plan,

2) reviews a submitted action

plan, 3) requires changes in materials, products, or processes, or 4)

requires use of “best available

techniques,” so as to reduce emissions of chemicals listed in Annex

C (polychlorinated dibenzo dioxins and furans, HCB, and PCBs).

Prohibits implementation of any

action that is not authorized in

U.S. statutes. [§2]

No comparable provision.

Consultation with

Congress

Requires the President “as appropriate” to consult with Congress

before consenting to bind the

United States to an amendment to

Annex A, B, or C to the Stockholm POPs Convention. Directs

the President to provide to the

House Committee on Energy and

Commerce and the Senate Committee 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 public health and the environment.

[§2]

No comparable provision.

Technical cooperation

New TSCA §505 requires EPA,

with the State Department and

other agencies, to participate in

international efforts on chemical

substances, and to participate in

technical cooperation and capacity

building to support implementation of the Stockholm POPs Convention, LRTAP POPs Protocol,

and PIC Convention.

New TSCA §504 has similar provisions.

[§2]

Requires that EPA publish in the

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]

No comparable provision.

CRS-26

H.R. 4800, as ordered to be

reported

Subject

H.R. 4591, as amended

Technical cooperation (con.)

New TSCA §505 also directs EPA

to provide timely advance notice

of the schedule and agenda of

meetings on the three agreements

and subsidiary bodies. [§2]

No comparable provision.

Harmonization of

Stockholm POPs

Convention and

LRTAP POPs Protocol

New TSCA §503(h) applies to

chemicals that are both Stockholm

POPs chemicals and LRTAP

POPs chemicals. In the case of

conflict between provisions of

subsection (f) which provides exemptions from regulations under

the Stockholm POPs Convention,

and subsection (g), which provides 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 agreements. [§2]

New TSCA §502(i) is similar, but

applies whenever there is a conflict between any provision of

§502 applicable to a LRTAP

POPs chemical and any provision

applicable to a Stockholm POPs

chemical, rather than only to provisions that offer exemptions.

[§2]

Public notice of

chemicals subject to

requirements of the

Stockholm POPs

Convention

New TSCA §503(f)(6)(E) requires

EPA to make publicly available a

list of parties to the Stockholm

POPs Convention, productionand use-specific exemptions available to the United States under the

Stockholm POPs Convention, parties that are permitted to use

chemicals in Annex A or B, and

chemicals with no production- or

use-specific exemptions.

[§2]

New TSCA §503(a) directs EPA

to publish in the Federal Register

timely notice concerning the

chemicals subject to the prohibitions specified in §502, exemptions from the prohibitions, any

disallowances of exemptions, and

a list of any importing countries

that are not parties to the Stockholm POPs Convention but that

have provided EPA with a certification of intent to comply with

certain requirements of the POPs

Convention. Directs EPA to update the record as necessary and to

make the record publicly available. [§2]

Removal of TSCA

exemptions for

chemicals intended

for export

Section 5 amends TSCA §12(a)(1)

so that the exemption it provides

from most requirements of TSCA

for chemicals intended for export

will not apply to the requirements

of Title V or new TSCA §12(c).

This provision ensures that chemicals produced solely for export

may be regulated under TSCA

Title V, in accord with the three

international agreements. [§5]

Similar provision, but H.R. 4800

does not add a new subsection (c)

to TSCA §12.

[§4]

CRS-27

H.R. 4800, as ordered to be

reported

Subject

H.R. 4591, as amended

Implementing the

PIC Convention

Section 5 adds a new subsection

(c) to TSCA §12. New TSCA

§12(c)(1) directs those who distribute in commerce for export a

chemical substance listed in Annex III of the PIC Convention to

comply with export conditions or

restrictions identified by EPA in a

public notice.

New TSCA §505 has the same

provision.

New TSCA §12(c)(4)(C) requires

EPA, with the concurrence of the

Secretary of State, to provide public notice of chemicals listed on

Annex III to the PIC Convention,

and of conditions or restrictions

relating to those chemicals imposed by importing foreign states.

New TSCA §505(d)(3) has a similar provision, but requires consultation rather than concurrence

with the Secretary of State.

New TSCA §12(c)(4)(A) directs

EPA to determine, with the concurrence of the Secretary of State,

whether a chemical is banned or

severely restricted within the

United States. Requires EPA to

issue notice to the PIC Secretariat

and the public of each such determination. [§5]

New TSCA §505(d) has a similar

provision, but requires consultation rather than concurrence with

the Secretary of State.

No comparable provision.

New TSCA §505(e) authorizes

EPA to promulgate rules to facilitate implementation of §505 and

to ensure compliance with the PIC

Convention. [§2]

New TSCA §12(c)(2) requires

exporters to notify EPA of their

intent to export a chemical that is

banned or severely restricted,

listed in the PIC Convention Annex III, or a Stockholm POPs

Convention chemical for which

export is not prohibited by new

TSCA §502(a) or §503(e).

New TSCA §505(b) has the same

provision.

Such notice must be provided between 15 and 45 days prior to the

first export to each country in

each year of a chemical that is

banned or severely restricted,

listed in Annex III of the PIC

Convention, or a Stockholm POPs

Convention chemical.

New TSCA §505(b) is similar to

H.R. 4591, but requires notice to

be provided between 15 and 30

days prior to the first export of

each chemical to each country in

each year.

Authorizes EPA to establish alternate time frames if appropriate.

New TSCA §505(b) has the same

provision.

Export notice requirements

CRS-28

H.R. 4800, as ordered to be

reported

Subject

H.R. 4591, as amended

Export notice requirements (con.)

Requires EPA, within 18 months

after the PIC Convention enters

into force for the United States,

and within 18 months after the

Stockholm POPs Convention enters into force for the United

States, to review time frames for

providing notices. [§5]

No comparable provision.

[§2]

New TSCA §12(c)(4)(B) directs

EPA, upon receipt of a pre-export

notice to a foreign state for a

banned or severely restricted

chemical, to determine whether it

is the first such notice in the calendar year and if so, to provide a

copy to the importing foreign

state.

New TSCA §505(d)(2) has the

same provision.

Content requirements for export

notices

New TSCA §12(c)(2)(C) specifies

the required contents of pre-export

notices for banned or severely restricted chemicals, chemicals

listed in Annex III of the PIC

Convention, and Stockholm POPs

chemicals that may be exported.

[§5]

New TSCA §505(b) has similar

provisions, but does not require

EPA to issue a general order published in the Federal Register

when it decides that it needs information other than that specified in

this TSCA subsection.

[§2]

Shipment copies

and records of notices

New TSCA §12(c)(2)(D) requires

exporters to include a copy of the

most recent pre-export notice with

each shipment of a chemical listed

on Annex III of the PIC Convention or a Stockholm POPs chemical. New TSCA §12(c)(2)(E) requires exporters covered by notice

requirements to maintain a copy

of each notice and other documents used to generate the notice

for at least three years following

the date on which notice is provided. [§5]

New TSCA §505(b) has the same

provisions.

[§2]

Labeling requirements for exports

New TSCA §12(c)(3) requires

labeling of chemical substances or

mixtures that EPA has identified

as banned or severely restricted

within the United States or listed

in Annex III to the PIC Convention. [§5]

New TSCA §505(c) has the same

provisions.

[§2]

CRS-29

H.R. 4800, as ordered to be

reported

Subject

H.R. 4591, as amended

Exemptions to PIC

requirements

New TSCA §12(c)(6) directs EPA

to allow export of trace concentrations without notification if EPA

finds export of such concentrations does not pose a significant

threat to human health or the environment and is not inconsistent

with the PIC Convention, the

Stockholm POPs Convention, and

the LRTAP POPs Protocol.

No comparable provision.

Exemptions to PIC

requirements (con.)

Authorizes EPA to issue a notice

exempting any chemical or use of

a chemical from notice requirements of TSCA §12(c)(1), (2),

and (3) if EPA determines, with

concurrence of the Secretary of

State, that the exemption would be

consistent with the PIC Convention or Stockholm POPs Convention. [§5]

New TSCA §505(d)(4) has similar

provisions, but requires consultation rather than concurrence with

the Secretary of State.

[§2]

Consolidation of

reporting requirements

New TSCA §12(c)(5) directs EPA

to allow a single notice to satisfy

TSCA pre-export notice requirements.

[§5]

New TSCA §505(e) is similar, but

it authorizes rulemaking, and does

not require EPA to allow a single

notice.

[§2]

Harmonization of

PIC Convention and

Stockholm POPs

Convention

No comparable provision.

New TSCA §505(f) provides that

if a chemical is covered by the

Stockholm POPs Convention or

LRTAP POPs Protocol and the

PIC Convention, the more stringent provision will apply in the

event of a conflict. [§2]

Clarification of Title V Authority and

Intended Effects

New TSCA §507 provides that

TSCA Title V should not be construed to require the United States

to register for any specific exemption or any acceptable purpose

available to the United States under the Stockholm POPs Convention. Neither does Title V affect

the authority of EPA to regulate a

chemical under any other law or

any other provision of TSCA

[§2]

New TSCA §506 is the same provision. [§2]

Inspection authority

Amends TSCA §11 to provide

EPA with inspection authority for

enforcement purposes.[§6(b)]

Same as H.R. 4591.

[§6(a)]

CRS-30

Subject

H.R. 4591, as amended

H.R. 4800, as ordered to be

reported

Entry into customs

territory

No comparable provision.

Section 6(b) amends TSCA §13 to

direct the Secretary of the Treasury to refuse entry into U.S. customs 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

prohibit actions that fail or refuse

to comply with any requirement of

Title V or rule or order promulgated or issued under Title V.

States that it is unlawful to use a

chemical for commercial purposes

if it was made or distributed in

commerce in violation of Title V.

[§6(c)]

Section 5 is similar to H.R. 4591,

but prohibits using for commercial

purposes a chemical that was distributed in commerce for export,

used or disposed of in violation of

Title V.

[§5]

Penalties

Amendments to TSCA §15 made

by H.R. 4591, Section 6(c), make

specified violations of Title V unlawful acts, which are subject to

civil and criminal penalties under

existing provisions of TSCA §16.

[§6(c)]

Section 6(c) amends TSCA §16 to

authorize civil and criminal penalties for violations of Title V.

[§6(c)]

Enforcement and

seizure

Section 6(d) amends TSCA §17.

The jurisdiction of district courts

is extended to cover some civil

actions to enforce Title V. Authorizes seizure of a chemical subject

to Title V, or any article containing such chemical, if it was manufactured, processed, or distributed

in commerce in violation of

TSCA.

Similar, but also extends jurisdiction of district courts over civil

actions to restrain a violation of

Title V.

State and Local

Preemption

Amends TSCA §18(a)(2) to preempt state and local requirements

applicable to a POPs or LRTAP

POPs chemical substance, for

which a listing under Annex A or

B to the Stockholm POPs Convention or Annex I or II to the

LRTAP POPs Protocol has entered into force for the United

States, unless such requirements

are identical to the federal requirements, adopted under another federal law, or prohibit the use of the

chemical within the relevant jurisdiction.

[§6(e)]

Does not preempt state or local

requirements that are more stringent than federal requirements

under new TSCA §502(h).

[§6(e)]

CRS-31

H.R. 4800, as ordered to be

reported

Subject

H.R. 4591, as amended

Citizens’ civil actions

No comparable provision, but

TSCA §20(a) authorizes citizens

to commence civil action against

alleged violators of the act.

Amends TSCA §20(a) to authorize citizens to commence civil

action against alleged violators of

Title V or rules promulgated under Title V. [§6(f)]

Judicial review

Section 4 amends TSCA §19 to

authorize any person to file a petition for judicial review of a rule

promulgated under Title V no

more than 60 days previously.

Directs the court to set aside a rule

that is “not supported by substantial evidence in the rulemaking

record ... taken as a whole.” Generally, judicial review provisions

are similar to those for rules promulgated under the other titles of

TSCA, with a few exceptions.

New TSCA §502(h)(2) authorizes

any person to file a petition for

judicial review of a final rule or

final decision under §502(h)(1)(B)

within 60 days of publication of

the rule or decision. Directs the

court to set aside a rule or decision that is “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.”

Authorizes the court to award

costs relating to the review.

For any rule promulgated under

new subsection 503(e), all written

comments and information received 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 presentations available for judicial review

of the rule.

[§4]

No comparable provision.