Congress begins chemical regulation debate

By: Gayle S. Putrich

June 13, 2013

WASHINGTON — Even with a seemingly historic bipartisan bill now in the Senate, there is still a lot of push and pull ahead before a final compromise is reached on chemical regulation in Congress.

Introduced in May by Sen. David Vitter, R-La., and the late Sen. Frank Lautenberg, D-N.J., to much bipartisan support and fanfare, the Chemical Safety Improvement Act would amend the much-maligned Toxic Substance Control Act (TSCA) for the first time since its 1976 enactment.

In a hearing on TSCA’s problematic holes, Rep. Paul Tonko, D-N.Y., told the House Energy and Commerce Subcommittee on Environment and the Economy that the act “has not lived up to expectations.” Rep. Henry Waxman of California, the ranking Democrat on the full committee, called TSCA “long overdue for strengthening.”

Republicans and witnesses piled on as well.

“TSCA is widely recognized to be a failure,” said Daniel Rosen¬berg, a senior attorney with the Natural Resources Defense Council, in his testimony.

While nearly everyone can agree TSCA needs to be changed, what changes to make and how far to take them remains a contentious matter.

Industry has come out in broad support of the Lautenberg-Vitter Chemical Safety Improvement Act (CSIA) compromise bill. A coalition of more than 85 trade associations — including a wide variety of plastics and plastics-related trade groups from the Society of the Plastics Industry Inc. and the American Chemistry Council to the Plastics Pipe Institute and the Styrene Information & Research Center — is throwing its support and influence behind the bill.

“The bill provides a solid scientific foundation for regulatory decisions and provides clear direction for EPA to create a trans- ¬parent, efficient and sensible process to manage the safety of chemicals in commerce,” wrote the American Alliance for Innovation in a June 11 news release.

Unease, however, remains on the industry side, in spite of the fact that many industry groups, particularly ACC, say their input was taken into consideration when CISA was written.

Beth Bosley, president of Boron Specialties LLC, a boutique industrial chemical manufacturer based near Pittsburgh, told the House panel that some changes to TSCA — such as requiring extensive new testing before a new chemical can go into development — could cost small companies like hers anywhere from $500,000 to $750,000 in prerequisite fees for a chemical that may not even end up being manufactured, effectively running small businesses out of business.

“TSCA has allowed the U.S. to lead the world in chemical innovation, and has done so without jeopardizing our nation’s health or the environment,” Bosley said. “Any amendments to TSCA must preserve the time frames and flexibility that allow this innovation to continue.”

Bosley also encouraged lawmakers to protect proprietary information, lest a regulatory law end up actually giving a leg up to overseas competitors.

“Disclosure of chemical identity is all it takes to give away a competitive advantage to an offshore manufacturer,” she said.

Meanwhile, environmental and health-care groups worry TSCA reform will not go far enough. On June 12, 15 health and environmental groups, including Greenpeace, the Environmental Working Group and the Breast Cancer Fund sent legislators a letter asking them to oppose the measure and warning that the bill “will fall far short of our shared goal of safeguarding human health from the risks posed by exposure to toxic chemicals.”

The next day, in the House subcommittee hearing, Breast Cancer Fund President and CEO Jeanne Rizzo, who is also a registered nurse, debated the impact of unregulated endocrine disruptors with Rep. Bill Cassidy, R-La., who is also a physician, and challenged the chemical industry to come up with alternatives to potentially harmful chemicals such as phthalates. Tighter chemical regulations — tighter than currently in TSCA and tighter than those proposed in CSPA — would spur further chemical innovation, Rizzo argued, and be better for both consumers and industry in the long run.

Though TSCA has been criticized as ineffective for nearly as long as it has been a law, reform has been slow in the making. The bipartisan nature of CSPA could make it the bill that changes things, analysts say, but still more things have to fall into place.

“If the Senate passes an amended CISA with strong Republican and industry support, the House would probably consider taking on the Senate’s bill, amending it some and then reconciling the differences in conference,” said Mark Duvall, a principal with law firm Beveridge & Diamond PC.

But even with that vision for the way ahead, Duvall said the likelihood of it all happening in the next six months is less than 50 percent, though he gives better odds to it happening before the close of the 113th Congress, sometime in late 2014.

The June 3 death of CISA co-author Lautenberg could help the bill’s case, Duvall said, much in the way the death of Sen. Edward Kennedy spurred action on the health-care bill in 2010, though it is unclear so far which Democratic co-sponsor will take up Lautenberg’s mantle and lead the chemical regulation charge.

Whoever it is, compromise will have to be their main focus, Duvall said. Much input was incorporated from all sides; however, while still addressing each of the key weaknesses of TSCA, the bill before the Senate is not everything industry would want and not everything the non-government organizations would want, either, he said.

“The first page of this bill is extraordinary because it includes the names of the most liberal and most conservative members of the Senate and they’re all co-sponsors,” he said. “This is a rare showing of bipartisan support for an industrial and public safety issue and it carried with it a window of opportunity that can close if either or both sides refuse to accept the compromise.”