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TSCA Reform In Congress: Negotiating The Details

Senators pledge to tweak bipartisan compromise bill to overhaul federal chemical control law

by Cheryl Hogue
August 12, 2013 | A version of this story appeared in Volume 91, Issue 32

Credit: Senate Environment & Public Works Committee
Boxer (right) and Vitter are often opposed politically but say they will try to work together on chemical control legislation.
This is a photo of Sens. Barbara Boxer (D-Calif.) and David Vitter (R-La.).
Credit: Senate Environment & Public Works Committee
Boxer (right) and Vitter are often opposed politically but say they will try to work together on chemical control legislation.

Bipartisan efforts to craft and pass legislation are rare on Capitol Hill these days. So are bills that would directly affect the chemical industry. Yet for the past several months, Democrats and Republicans in the Senate have worked together on legislation to overhaul the 37-year-old law governing commercial chemicals.

In late May, Sens. Frank R. Lautenberg (D-N.J.) and David Vitter (R-La.) unveiled a compromise bill (S. 1009) to reform the Toxic Substances Control Act (TSCA). It initially garnered broad, general support from the chemical industry, many health and environmental advocates, and several senators from both sides of the aisle (C&EN, June 10, page 22).

But criticisms of the legislation involving provisions that would preempt state laws and impact chemical lawsuits began to crop up in recent weeks after advocacy groups and states pored over the details of the 127-page bill to overhaul the nation’s chemical control law. And to complicate matters further, the bill’s sponsor and main champion, Lautenberg, died in early June.

Now, two key cosponsors—Vitter and Sen. Tom Udall (D-N.M.)—say they are working to respond to criticisms by drafting changes to S. 1009. They warn that, to maintain bipartisan support for the compromise bill, they will be able to make only minor modifications.

At the same time, a pivotal player in the bill’s future hasn’t officially taken a position on the measure: Sen. Barbara Boxer (D-Calif.), who chairs the Senate Environment & Public Works Committee, which has jurisdiction over chemical regulation.

Boxer convened a committee hearing late last month to air critiques of S. 1009. After hearing hours of testimony from 19 witnesses, Boxer indicated she was willing to move this measure through her committee if four concerns she has with the legislation can be resolved. One involves the bill’s preemption of state laws on chemicals. Another is its lack of deadlines for the Environmental Protection Agency to assess commercial chemicals for safety. Third, Boxer wants the bill to spell out how EPA would address what the measure terms “the vulnerability of exposed subpopulations” to hazardous chemicals. And further, she wants to ensure that the bill does not preclude lawsuits in state courts alleging that chemicals harmed people.

The four issues Boxer calls out are shared by many stakeholders.

The preemption provision in S. 1009 responds to chemical industry calls for a TSCA reform bill that overrides state laws that ban or restrict specific compounds. These individual state actions are headaches for chemical makers that instead want a single nationwide regulatory system.

But the preemption language in the bill goes too far, say attorneys general from California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Oregon, Vermont, and Washington in a July 31 letter to Boxer. As introduced, S. 1009 could tie the hands of states wanting to control dangerous chemicals while EPA decides whether and how to regulate those substances, they argue. Boxer said she received a similar letter from the New York attorney general.

The bill’s preemption provision is tied to another section of the legislation. That part would require EPA to divide all commercial chemicals on the market into two categories. One would consist of low-priority substances that EPA decides are safe for their manufacturers’ intended uses and would not undergo safety evaluations.

The other list would include substances deemed high priority on the basis of their potential risk to human health or the environment. These chemicals would require further EPA evaluation and would be off-limits for state regulation. EPA then would assess those high-priority chemicals for safety. The agency would eventually regulate substances that fail to meet the bill’s safety standard.

“S. 1009 would preempt states from enforcing existing laws or from adopting new laws regulating chemicals that EPA designates as high priority months or even years before any federal regulations … become effective,” says the letter from the nine attorneys general.

Preempting state action in the absence of any final federal rule “creates a regulatory vacuum that endangers public health and safety,” Michael A. Troncoso, senior counsel to the California attorney general, said at the hearing.

In addition, Boxer said, the preemption provision “could drive an arrow through the heart of Proposition 65,” a 1986 voter-approved California law. Prop 65 mandates the labeling of products containing carcinogens or reproductive toxicants.

“We never intended to neuter Prop 65,” Vitter responded. He said he is drafting new language for the bill with Udall that “will make that crystal clear.”

“I’m looking forward to that rewrite,” Boxer shot back. She said she intends to run Vitter and Udall’s changes to the preemption language past the attorneys general who wrote to her.

Aside from preemption, some Democrats on the committee and several witnesses also complained that S. 1009 contains no deadlines for EPA to determine the safety of high-priority substances.

“In the world of competing priorities and political pressures, nothing happens without a deadline,” said Daniel Rosenberg, senior attorney for the Natural Resources Defense Council, an advocacy group.

Linda J. Fisher, vice president and chief sustainability officer at DuPont, said that in addition to “meaningful deadlines,” Congress needs to ensure that EPA has appropriate resources to meet them. Fisher served at EPA in the Administrations of Presidents Ronald Reagan, George H. W. Bush, and George W. Bush.

Udall said he is working with Vitter to come up with deadlines by which EPA would have to complete assessments of chemicals.

As part of those safety assessments, S. 1009 would also require EPA to consider exposures of vulnerable groups to a chemical. “But it doesn’t explicitly require that safety determinations protect vulnerable populations from those exposures,” pointed out Cecil D. Corbin-Mark, deputy director of We Act for Environmental Justice, a New York City community group. Plus, he told the committee, the bill fails to define what kinds of people constitute a vulnerable population: “I have learned, sometimes the hard way, that if it isn’t defined in legislation, it doesn’t exist.”

Sister Susan Vickers, vice president of community health for Dignity Health, a hospital and health care group in the U.S. Southwest, agreed with Corbin-Mark. The bill should unequivocally aim to protect developing fetuses, babies, pregnant women, and people who live in communities with significant existing chemical exposures, she said at the hearing.

Vitter and Udall said they would craft language to explicitly define vulnerable subpopulations.

Another sticking point for Boxer and others with S. 1009 is toxic torts, which are lawsuits that allege exposure to a chemical that caused harm to a person. The controversy surrounds a bill provision for substances that EPA determines are safe for their intended use (C&EN, July 1, page 16).

The bill would mandate that EPA’s safety determinations be admissible as evidence in state court cases. This would shield chemical makers from liability for harm caused by products “even when there is newly acquired safety information generated after EPA’s safety determination,” said Robin L. Greenwald. She is an attorney who leads the environmental toxic torts group at the New York City law firm Weitz & Luxenberg.

Vitter said S. 1009 was in no way intended to stop tort cases. He and Udall are working on an amendment that would clarify that the legislation does not prevent tort cases alleging harm from exposure to chemicals.

At the hearing’s end, Boxer indicated that she might support the bill, signaling she wants to be part of the bipartisan effort to modify S. 1009. She added, “If we don’t fix the problems, we’re not going to have a bill.”


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