On July 31, 2013, the Senate Committee on Environment and Public Works held a hearing on 'Strengthening Public Health Protections by Addressing Toxic Chemical Threats.' To date, two bills have been introduced in the Senate that would reform the Toxic Substances Control Act (TSCA) -- the Safe Chemicals Act of 2013 (S. 696) (SCA) and the Chemical Safety Improvement Act (S. 1009) (CSIA). The late Senator Frank R. Lautenberg (D-NJ) reintroduced the SCA on April 10, 2013, and more information regarding the bill is available in our April 29, 2013, memorandum. Several weeks later, on May 22, 2013, Lautenberg and Senator David Vitter (R-LA) introduced the CSIA. More information regarding the CSIA is available in our May 29, 2013, memorandum.
The Committee focused almost exclusively on the CSIA, which has received bipartisan support, as well as support from some non-governmental organization (NGO) representatives who have been most active on the issue. Others, including Senator Barbara Boxer (D-CA), Chair of the Committee, have been critical of the CSIA, claiming it would preempt California laws such as Proposition 65. During the hearing, Senator Boxer's animus toward the bill was palpable. Much of the testimony focused on whether CSIA would preempt existing state laws or prevent states from promulgating additional laws regulating toxic chemicals, a topic close to Senator Boxer given the pride her native California takes in its approach to chemical regulation. Opening statements, witness testimony, and a webcast of the hearing are available online.
As reported in our July 15, 2013, Update, the Congressional Research Service (CRS) published a July 8, 2013, report entitled Proposed Reform of the Toxic Substances Control Act (TSCA) in the 113th Congress: S. 1009 Compared with S. 696 and Current Law. The report notes that the SCA 'would rarely preempt state and local laws.' The CSIA would authorize EPA to require manufacturers to develop new information if EPA can show need in the context of an evaluative framework for chemical risk assessment and management. The bill would require EPA to screen all chemicals in commerce and assign each a high or low priority for risk assessment or, if necessary, require manufacturers to produce additional information. It would require EPA regulation ensuring 'no unreasonable risk of harm from exposure' to a chemical under the intended conditions of use. The CSIA, according to the CRS, would preempt new state and local laws for chemicals identified as high or low priority. The report states that both bills would evaluate the TSCA Inventory to allow prioritization of the estimated 9,000 chemicals currently produced and used in the U.S. In addition, both bills would explicitly require manufacturers to substantiate some requests for protection of confidential business information (CBI) from public disclosure. The CRS report is available online.
On July 30, 2013, the day before the hearing, Republican staff distributed a background paper entitled 'Myth vs. Fact: The CSIA and Preemption.' The paper states: 'The CSIA will never preempt the traditional state roles of regulating water quality, air quality, waste treatment, or disposal and does not preempt wholesale state regulatory programs. Only in some instances could chemical-specific regulations be preempted in a narrowly tailored way based on EPA safety determinations.' (Emphasis in original.) The paper is available online. Meanwhile, Democratic staff distributed a paper entitled 'Claims vs. Facts About the Chemical Safety Improvement Act (CSIA).' The paper notes that the preemption of state authority 'is more expansive than that in the current law, but it should be noted that CSIA also expands the current law's federal authorities. This trade-off between raising the federal floor and limiting state authority needs to be done carefully to strike a balance that provides the political support needed to gain passage while setting forth sound policy and ensuring full protection of human health and the environment.' The paper is available online.
This boxing match approach to opinions of the bill on both sides of the aisle carried forth throughout the next day at the Committee hearing. The hearing itself, with recesses for lunch and for votes on the Senate floor, lasted almost six hours, an unusually long time for most Senate hearings. At various times the 'comity of the Senate' was stretched thin, resembling a tone more often associated with contentious hearings in the House of Representatives.
In her opening statement, Senator Boxer listed various criticisms of the CSIA, highlighting a July 31, 2013, letter from nine Attorneys General expressing their 'deep concerns about the unduly broad preemption language' in the CSIA, which would amend TSCA and 'could, in its current form, seriously jeopardize public health and safety by preventing states from acting to address potential risks of toxic substances and from exercising state enforcement powers.' California was joined by Attorneys General from Connecticut, Delaware, Maryland, Massachusetts, New Mexico, Oregon, Vermont, and Washington. The July 31, 2013, letter is available online.
Senator Vitter, Ranking Minority Member of the Committee, noted that the CSIA is the first comprise bill to reform TSCA. According to Senator Vitter, bipartisan support for the bill continues to grow, and the bill is supported by the editorial boards of the New York Times and Washington Post. Senator Vitter stated that criticisms of the bill fall into two broad categories, misimpressions or actual distortions and legitimate suggestions. Senator Vitter emphasized that, when he and Senator Lautenberg drafted the CSIA, they did not intend the bill to preempt private rights of action.
Other Committee members offered opening statements. According to Senator Jeff Merkley (D-OR), CSIA is a compromise bill and requires flexibility, and it could lose the bipartisan support that makes it passable. Senator Benjamin L. Cardin (D-MD) expressed his concern with the 'unduly broad' preemption language. Senator Tom Udall (D-NM), Chair of the Environment and Public Works Subcommittee with jurisdiction over TSCA and an original co-sponsor of CSIA, stated that he believes the CSIA takes successful elements of TSCA, while striking others, such as the least burdensome requirement that has prevented the U.S. Environmental Protection Agency (EPA) from regulating asbestos. Senator Udall noted that the CSIA could be improved by incorporating deadlines and timetables and better protecting vulnerable populations. Senator John Barrasso (R-WY) highlighted news reports favorably describing the CSIA and urged the Committee not to let the opportunity to reform TSCA go by. Finally, Senator Kirsten Gillibrand (D-NY) stated that she cosponsored both the CSA and CSIA. She described the CSIA a promising start, while acknowledging there are provisions to fix as the bill moves through Congress.
Panel 1 consisted of the following witnesses:
- Mr. Michael A. Troncoso, Senior Counsel, Office of the Attorney General, California;
- Mr. H. Michael Dorsey, Chief, Homeland Security and Emergency Response, West Virginia Department of Environmental Protection; and
- Mr. Ken Zarker, Manager, Pollution Prevention & Regulatory Assistance Section, Washington State Department of Ecology.
Troncoso stated that the California Attorney General asked him to testify about the potentially crippling effects of CSIA's preemption provisions. According to Troncoso, the CSIA would roll back the authority to act that states currently have under TSCA. Troncoso described the CSIA's waiver provision as sufficiently onerous as to be illusory. Dorsey testified that CSIA is the best and last chance to fix TSCA, and while there are objections to the bill as currently drafted, he does not believe they are insurmountable. Dorsey testified that West Virginia looks to the federal government to regulate toxic chemicals and does not have the resources to do so on its own. According to Zarker, states have been stepping up to fill the gaps in federal protection from toxic chemicals, and the bills at state level typically pass with bipartisan support. Zarker listed a number of state principles on TSCA reform, including a prevention-based approach; preserving state's authority to act; ensuring EPA has adequate data; and requiring manufacturers to produce data.
This first panel, given the background of the witnesses, made the issue of state preemption center stage as the panel discussed state authority, state capabilities, and the pro/con of state preemption during the beginning of the hearing, which was the well-attended part of the event. Later panels repeatedly came back to the preemption issue, which overlay then entire day's proceeding.
Panel 2 consisted of the following witnesses:
- Mr. Daniel Rosenberg, Senior Attorney, Natural Resource Defense Council (NRDC);
- Mr. Thomas McGarity, Professor of Law, University of Texas at Austin;
- Ms. Linda J. Fisher, Vice President of Safety, Health and Environment and Chief Sustainability Office, DuPont;
- Mr. Stephen A. Owens, of Counsel, Squire Sanders, LLP;
- Ms. Linda Reinstein, Executive Director and Cofounder, Asbestos Disease Awareness Organization;
- Ms. Robin Greenwald, of Counsel, Weitz & Luzxenberg;
- Mr. Mark N. Duvall, Principal, Beveridge & Diamond, PC; and
- Mr. Ken Cook, President and Co-founder, Environmental Working Group (EWG).
Rosenberg testified that NRDC does not want to miss the opportunity to reform TSCA and is willing to work to improve the CSIA. According to McGarity, while TSCA is broken, the CSIA could make a bad situation worse. McGarity suggested that current TSCA's state preemption provision, which is 'not broken' and not the subject of controversy, should be retained. McGarity criticized the CSIA as providing a gift of partial immunity to manufacturers lucky enough to have EPA declare their chemicals safe.
Fisher, who served as Assistant Administrator of the Office of Prevention, Pesticides and Toxic Substances under President George H.W. Bush, and then as Deputy Administrator under President George W. Bush, testified that industry is increasingly subject to state chemical bans because of a lack of federal action. Fisher praised the CSIA, which would direct EPA to evaluate systematically the safety of existing chemicals in use; streamline EPA's authority to gather the necessary data to determine whether a chemical is safe for its intended use; and streamline EPA's authorities to identify and act on chemicals that may pose safety concerns in their use. Owens, who served as Assistant Administrator of the Office of Chemical Safety and Pollution Prevention under President Obama, had already spoken out in favor of CSIA upon its introduction, reiterated his support at the hearing, and telling the Committee that CSIA was consistent with the Obama Administration's principles for TSCA reform:
- Chemicals should be reviewed against safety standards that are based on sound science and reflect risk-based criteria protective of human health and the environment;
- Manufacturers should provide EPA with the necessary information to conclude that new and existing chemicals are safe and do not endanger public health or the environment;
- Risk management decisions should take into account sensitive subpopulations, cost, availability of substitutes, and other relevant considerations;
- Manufacturers and EPA should assess and act on priority chemicals, both existing and new, in a timely manner;
- Green chemistry should be encouraged and provisions assuring transparency and public access to information should be strengthened; and
- EPA should be given a sustained source of funding for implementation.
Reinstein testified concerning the harm caused by EPA's failure to regulate asbestos under TSCA. Greenwald criticized the CSIA, stating that it would take chemical reform several steps backwards and would preclude state citizens from bringing actions. Duvall stated that, under the CSIA, states would have access to CBI, thus facilitating their discussions with EPA. States would also be able to nominate chemicals directly to EPA and provide data to EPA. Duvall also reviewed the narrowness of the state preemption under the CSIA. According to Cook, CSIA outlines what industry seeks in legislative change but is nonetheless useful in suggesting a way forward as there is a clearer idea of the reform that industry has been seeking, and Congress and stakeholders can consider better the reform options. He reiterated EWG's previous criticisms of CSIA as, among others, lacking data call-in authority and a minimum data set but nonetheless stated a willingness to work with Congress.
This panel gave mostly predictable testimony based on which side of the aisle invited them to the hearing. It was somewhat noteworthy, however, that after Owens, a Democratic appointee of the Obama Administration who was seen as supporting CSIA, Senator Boxer opined from the Chair that she believed the witnesses speaking in favor of CSIA all worked for companies or firms that were chemical companies or had business relationships with the chemical industry, while the other witnesses 'spoke for the public' -- plainly implying an impeachment of the testimony of the 'industry' witnesses.
Another awkward moment came before the questioning of this second panel. After a lunch break, Senator Joe Manchin (D-WV), an original co-sponsor of the CSIA and who is seen a major catalyst of bringing together Senators Vitter and Lautenberg before his death, gave a statement supporting CSIA. He broadly described the interaction he had with Senator Lautenberg and Senator Lautenberg's endorsement of the legislation. He made particular note of condemning those who have openly wondered whether Senator Lautenberg was in full control of his mental faculties when he introduced CSIA -- a none too subtle barb at Senator Boxer who was widely reported as openly making this suggestion. It was a bit uncomfortable since most observers know of this history, but the moment passed and the Committee proceeded to questions for the witnesses.
Panel 3 consisted of the following witnesses:
- Ms. Nancy Buermeyer, Senior Policy Strategist, Breast Cancer Fund;
- Ms. Susan Vickers, RSM, Vice President of Community Health, Dignity Health;
- Ms. Maureen F. Gorsen, Esq., Partner, Alston + Bird, LLP;
- Dr. Jonathan Borak, MD, DABT, Clinical Professor of Epidemiology and Public Health Clinical Professor of Medicine, Yale School of Medicine;
- Mr. Cecil Corbin-Mark, Deputy Director/Director of Policy Initiatives, We Act for Environmental Justice;
- Ms. Dorothy Felix, President, Mossville Environmental Action Now;
- Mr. Andrew R. Hackman, Vice President of Government Affairs, Toy Industry Association, Inc.; and
- Ms. Ansje Miller, Eastern States Director, Center for Environmental Health.
Vickers testified that the CSIA falls well short of strengthening public health protections and addressing toxic threats, and must be significantly amended. Gorsen, who previously served in two positions at the California Environmental Protection Agency (Cal/EPA), first as the Deputy Secretary for Law Enforcement and Counsel for Cal/EPA, and then as the Director of the California Department of Toxic Substances Control, focused on the issue of state preemption. According to Gorsen, the waiver provision under the CSIA is not illusory, and California would be able to obtain a waiver for its state laws, if necessary. Borak recommended that the CSIA be amended to include more explicit descriptions of vulnerable populations and an expanded discussion of chemicals of concern. Felix urged the Committee to pass a law that closes the gap between environmental law and environmental justice.
Questioning here followed a similar tone and strategy to the earlier panels. This last panel was also interrupted by other Senate business and dragged on into the afternoon. By this time, attendance was down to the Chair and Ranking Members (Senators Boxer and Vitter), who did not probe this last panel quite as closely as the earlier witnesses.
During the hearing, much of the discussion and questions by the Committee focused on the issue of whether and to what extent the CSIA would preempt state laws. While some of the members and witnesses stated that the preemption effect was sweeping, others argued that it was more narrow and limited. At the same time, both sides seemed to be open to further consideration of the issue, including clarifications and changes. Since preemption was the single biggest issue raised in the hearing, such openness to compromise may be promising, although much depends on Senator Boxer's receptivity to revision, which at best was hard to read. Issues were also raised about CSIA's effect on the right to private action in tort law, and Senator Vitter responded that this was not intended and outlined possible changes to clarify and limit the effect.
Other issues raised included the lack of deadlines in CSIA; the multiple requirements that EPA develop policy frameworks for prioritizing, assessing, and managing chemicals that could be difficult and time consuming; lack of a requirement for priority action to address known problem chemicals, such as persistent, bioaccumulative, and toxic chemicals (PBT), and related challenged substances; a lack of adequate protection to vulnerable populations; need for more EPA resources; and other concerns. At the same time, witnesses identified aspects that represented strong improvements over TSCA, including the changes to Section 6 regulation to eliminate the 'least burdensome' requirement, separation of risk assessment from risk management with risk-benefit considerations applying only to the latter, an improved ability to obtain testing without cumbersome TSCA rulemaking requirements, and including authorization for EPA to use order authority. The changes to TSCA Section 14 on CBI were also identified as being an important improvement. Both Fisher and Owens agreed that CSIA was a significant improvement over TSCA and, importantly, as mentioned earlier, Owens stated that, in his view, CSIA is consistent with EPA's principles for TSCA reform. Regarding the question of multiple policy frameworks, Fisher suggested that the Committee ask EPA to develop a workload analysis of the requirements specified in CSIA to ensure that the requirements and approach can be handled by EPA without undue delay or difficulty. Senator Boxer picked up on the point and suggested that EPA be asked to consider workload needs in implementing the requirements under the SCA.
This was one of several instances where Senator Boxer raised SCA seemingly in an attempt to steer the discussion in that direction. While some of the NGO witnesses made reference to SCA approaches, Committee members did not seem to take up the point other than to acknowledge that they had supported both bills. According to press accounts, Senator Boxer has stated her intention to develop a Chairman's draft, and she repeatedly stated her desire in the hearing to move legislation forward and quickly. At the same time, Democratic co-sponsors of CSIA seemed to reiterate some support for the CSIA approach, and emphasized that it represented bipartisan compromises that if not lost, could allow the bill to move forward. Notably, however, some of the original co-sponsors gave opening statements that closely mirrored those of Senator Boxer (e.g., the statement of Senator Gillibrand), which would indicate that Senator Boxer has reached out to some members of her Committee to support positions more closely aligned with her criticisms of CSIA.
While the overall goal of the hearing was stated by both Democrats and Republicans as an attempt to find compromise and work to bring a bill to the Senate floor, the list of issues that remain outstanding (besides preemption) may be difficult to address. In particular, the critics of CSIA mentioned the need for the safety standard of any new TSCA to mirror the 'reasonable certainty of no harm' standard of the Food Quality Protection Act. This has been described by many in the chemical industry as an 'impossible zero-risk' standard, and was often mentioned but not discussed in detail by several witnesses. In the end, resolving the preemption issue may involve evolution of the standard, since a stronger standard may help satisfy critics of the bill who believe CSIA is 'worse than current law.'
Such is the nature of legislative crafting (i.e., sausage-making) -- and it remains to be seen how much fortitude or willingness the various constituencies will bring to the table in the coming months. And the role of the House of Representatives was little mentioned in the Senate hearing, but even if compromise in the Senate is reached, it is not clear whether House members will be as willing to accept enhanced EPA authority of any kind. Nonetheless, the prospects for TSCA reform remain better than they have been since any earlier time.