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TSCA overhaul stalls over debate about language

By: Gayle S. Putrich

August 2, 2013

WASHINGTON — In the few months since it was introduced, a bill to update 1970s-era chemical regulations has gone from being hailed as a bipartisan compromise sure to pass to a contentious regulatory measure with a very uncertain future.

In a July 31 marathon hearing, Sen. Barbara Boxer, chairwoman of the Environment and Public Works Committee, made it clear to the bill’s co-author, 19 witnesses and a packed room that the Chemical Safety Improvement Act of 2013 (CSIA-S1009) would not make it to the Senate floor without extensive revision.

“If we don’t fix these problems, we’re not going to have a bill,” said Boxer, D-Calif.

Boxer and others fear language in the bill could pre-empt state authority to regulate or restrict chemicals used or sold within their borders once the Environmental Protection Agency acts on those substances. Boxer and other Californians fear the language could undermine rigorous chemical and environmental laws on the state’s books, such as Proposition 65.

At the same time, Boxer also said once sufficient changes are made to CSIA, she wants to put the bill on a fast track to enactment.

The compromise measure unveiled in May by co-authors Sen. David Vitter, R-La., and the late Sen. Frank Lautenberg, D-N.J., after more than a decade of disagreements would require safety testing of all chemicals on the market as well as new chemicals, and would grant the EPA authority to phase out or ban chemicals deemed harmful, from flame retardants to building materials to bisphenol A.

It would be the first overhaul of the much-maligned Toxic Substance Control Act (TSCA) since its 1976 enactment, which both sides of the aisle and even those outside the Beltway agree has mostly been a failure. The Vitter-Lautenberg deal had drawn support from the chemical industry — including the American Chemistry Council and the Society of the Plastics Industry Inc. — as well as smaller states that don’t have the capacity to extensively regulate chemicals on their own. But state attorneys general and environmental groups oppose the bill, saying it would usurp state laws now in place and working well that were passed in the vacuum left by decades of federal inaction.

Robin Greenwald, a lawyer with Weitz and Luxenberg, testified the bill would take “unprecedented” action in pre-empting state laws. Thomas McGarity, an expert at the Center for Progressive Reform, told the committee that one of the few provisions in TSCA that actually works is the provision that keeps the chemical law from preempting state laws.

“I wrote a book about pre-emption and I didn’t have to mention TSCA,” he said. McGarity called the proposed bill “an intrusive interjection into the day-to-day administration of justice in our courts” and warned that “as written, [CSIA] may make a bad situation worse.”

“But it can be fixed,” he said.

Others disputed such analysis of the proposed law. Mark Duvall, a Beveridge and Diamond lawyer with extensive experience with TSCA, testified that the concerned attorneys general are “wrong in almost all instances” and said CSIA “significantly expands the roles of states in EPA’s decision-making under TSCA.” Duvall also pointed out that some chemicals singled out as items of concern by those opposed to CSIA, such as phthalates, are subject instead to the Consumer Products Safety Act and are not actually regulated under TSCA, nor would they fall under CSIA if it became law.

Vitter said repeatedly he was already at work with Sen. Tom Udall, D-N.M., on an amendment to the bill that would make “crystal clear” that the federal law would not neuter state laws as well as make other clarifications based on “very legitimate suggestions for improvement.”

“[Lautenberg and I] in no way intended to remove authority of states or violate existing tort law,” Vitter said. “We thought that was clear in our language, but Sen. Udall and I are going to make it crystal clear in our managers’ amendment.” Boxer jumped in to say the Vitter-Udall amendment must also meet her approval and that she will be working on it with them.

Boxer also repeatedly asked each panel of witnesses to pledge their willingness to work with senators to adjust the bill, sometimes assigning “homework” to witnesses, asking them to circle and annotate parts of the measure they do and do not like for the committee.

“I have been a regulator and I have been regulated and I must say that it doesn’t matter where you sit, TSCA is a very difficult statute to implement,” said Linda Fisher, chief sustainability officer for DuPont Co. and a former EPA official.

The patchwork of state-by-state regulations enacted as TSCA became increasingly outdated has made it difficult for businesses large and small to sort through, Fisher said. The new bill would grant EPA the authority to systematically assess chemicals, but the agency should not be overburdened with multiple frameworks for doing so, she said.