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Chemical Production Law, Ammonium Nitrate Draw Attention

by Jeff Johnson , Cheryl Hogue
December 23, 2013 | A version of this story appeared in Volume 91, Issue 51

Congress years ago updated the major environmental laws of the 1970s, including the Clean Air Act and Clean Water Act. But the one exception to this legislative modernization effort left the statute governing commercial chemicals, the Toxic Substances Control Act (TSCA), virtually unchanged since it was enacted.

In its existing form, TSCA makes it practically impossible for the Environmental Protection Agency to regulate problematic chemicals, especially those that have been on the market since before Congress passed the law in 1976. Chemical manufacturers, environmental and health advocates, Republicans, and Democrats agree that this law needs a rewrite.

Democrats in Congress have discussed revamping TSCA on and off for years. But 2013 saw a major breakthrough when Sen. Frank R. Lautenberg (D-N.J.), who introduced a series of unsuccessful TSCA reform bills starting in 2005, joined Sen. David Vitter (R-La.) to craft and introduce a TSCA reform bill. The legislation (S. 1009) would require EPA to assess the safety of chemicals in commerce. It attracted bipartisan support in the Senate when Lautenberg and Vitter unveiled it in May.

But within weeks, Lautenberg, who for years championed the safety of chemicals and the chemical industry, died at age 89. For a short time after Lautenberg’s death, the future of S. 1009 was in limbo. But Sen. Tom Udall (D-N.M.) stepped up to work with Vitter on refining the bill and shepherding it through the Senate.

S. 1009 is having a challenging ride. Before the bill can go to the full Senate for a vote, it must move through the Environment & Public Works (EPW) Committee. Sen. Barbara Boxer (D-Calif.), who chairs the panel, supports TSCA modernization. But she has made it clear that parts of S. 1009 must be changed before she will call it up for a committee vote. A major sticking point for Boxer is language in the bill that would preempt state laws and regulations on chemicals. California officials say that provision could endanger a hallmark chemical program, Proposition 65, a voter-approved state law that requires labels on products containing carcinogens or reproductive toxicants.

Meanwhile, the House of Representatives Energy & Commerce Committee has taken a keen interest in TSCA after the introduction of S. 1009. Rep. John M. Shimkus (R-Ill.), chair of the panel’s Subcommittee on Environment & the Economy, convened four hearings this year on TSCA. At those gatherings, lawmakers from both sides of the aisle have thoughtfully probed the existing chemical control law and provisions of S. 1009, bypassing the partisan bickering that has pervaded many House hearings. Key members of the House appear to be waiting for the Senate to act on S. 1009 before introducing TSCA reform legislation.

The Senate EPW Committee is also leading an examination of ammonium nitrate oversight. In June, a tumultuous hearing by the committee revealed a host of inadequacies in U.S. worker and industry safety laws relating to safe storage and use of chemicals such as ammonium nitrate.

This is a photo of the aftermath from an April 2013 explosion at a fertilizer plant in West, Texas.
Credit: Newscom
An explosion at a fertilizer plant in the town of West, Texas, near Waco, in April killed 15 people, injured more than 100, leveled dozens of homes, and damaged other buildings including a school and nursing home.

The hearing examined an ammonium nitrate fire and explosion that occurred in April at a West, Texas, farm supply warehouse, killing 15 people and exposing failures in safety laws and regulations. Although the accident did not involve a chemical company, the Senate hearing quickly revealed problems that greatly influence all U.S. industries, particularly a long-running dispute between the Chemical Safety & Hazard Investigation Board (CSB) and both EPA and the Occupational Safety & Health Administration.

CSB stressed at the hearing that for a half-dozen years it had unsuccessfully urged the two agencies to expand the frequency and depth of plant inspections and to toughen risk-management efforts needed to avoid these sorts of accidents. Backing CSB was Senate EPW Committee Chair Boxer, who blasted the agencies and promised more Senate oversight of worker safety regulations.

Boxer also committed the EPW Committee to oversee implementation of a presidential executive order, issued in the wake of the hearing, that called for federal agencies to improve safety and security at U.S. chemical and other plants. The presidental directive, aimed at EPA and OSHA as well as the Department of Homeland Security, could be a game changer, Boxer has noted.


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