Lautenberg, Vitter announce bipartisan bill for TSCA modernization (UPDATED)

16:42 PM | May 22, 2013 | Rebecca Coons

Senators Frank R. Lautenberg (D-NJ) and David Vitter (R-LA) today announced the introduction of the Chemical Safety Improvement Act of 2013—a bipartisan effort to modernize the Toxic Substances Control Act (TSCA) that has the endorsement of both industry and leading environmental groups.

The legislation “would significantly update and improve TSCA, which has proven ineffective and is criticized by both the public health community and industry,” while also creating an environment where manufacturers can continue to innovate, grow, and create jobs, according to a press release issued by Lautenberg’s office. Lautenberg, a long-time advocate for TSCA reform, had reintroduced the Safe Chemicals Act earlier this year, while Vitter was said to be close to introducing a more industry-friendly TSCA-reform bill of his own.

A number of industry and environmental groups have characterized the bill as a solid bipartisan compromise that addresses key TSCA inadequacies and can serve as an effective template for meaningful chemicals management reform.

“Senator Vitter and his colleagues who collaborated on the measure have been careful to address the major issues that have for years routinely been hailed as the reasons why TSCA needs modernizing—the need for all chemicals to be evaluated for risk, enhanced EPA authority to address risks from chemicals deemed to pose unreasonable risks, prioritizes chemicals in commerce and compels further safety assessments for ‘high priority’ chemicals, among other important changes,” says Lynn Bergeson, a partner at law firm Bergeson & Campbell (Washington). “While not everyone will be happy, and work remains to be done, the bill is a very promising point of departure and a refreshing example of bipartisan teamwork.”

Cal Dooley, president and CEO of ACC, says the bill takes a balanced, comprehensive approach to updating the law, “which will give consumers more confidence in the safety of chemicals, while at the same time encouraging innovation, economic growth and job creation by American manufacturers.”  Linda Fisher, v.p. and Chief Sustainability Office at DuPont and former EPA Chief of Staff from 2001-2003, says the bill provides “a sound basis for legislation that can pass the U.S. Senate and bring needed change to the U.S. chemicals management regime."

Richard Denison, senior scientist at the Environmental Defense Fund, says the legislation is a “policy and political breakthrough” that gives EPA “vital new tools to identify chemicals of both high and low concern, and to reduce exposure to those that pose risks." He adds that, while the bill represents a "hard-fought compromise," it opens a bipartisan path forward to fix a badly outmoded system.

The chemical industry has for years been an advocate for TSCA reform, as waning public confidence in the federal government's ability to effectively regulate chemicals gave rise to increasing state, local, and retailer product restrictions.  The announcement was a surprising development, however, for many who have followed the TSCA debate.

“The fundamental goals of the industry and NGOs were at odds, and two constituencies had for years been approaching TSCA reform from two completely different directions,” Ernie Rosenberg, president & CEO of the American Cleaning Institute, tells CW. “What appears to have happened is everyone involved concluded that we could all either keep doing what we’ve been doing since 1976 and get nowhere, or we could each set aside a few of our demands and fix the major holes in TSCA. This bill finally breaks the logjam.”

The bill required compromises for both industry environmental groups. Convincing a broad swathe of industry of the necessity of strong regulatory oversight of chemicals was the first major task, Rosenberg says. Getting Republicans to set aside their normal antipathy toward regulation was also an uphill climb, he adds. However, both ceded that TSCA had to be stronger given the public’s lack of confidence government's ability to regulate chemicals and the increasing number of market-splintering state regulations.

“Some of the industry compromises were hard to swallow, but most of the companies involved began the process with the assumption that industry would end up paying more for the TSCA process and have to do additional testing, but that was a better alternative to 50 state-level regulations,” Rosenberg says.  “We wanted a credible, federal program." Pushing through a bill that lacked NGO support and was open to attacks would not improve public confidence, he adds.

Faced with the prospect of having the same weak law in place for a couple more decades, NGOs made compromises of their own—none of which were beyond those agreed to by Lautenberg, Rosenberg says.

Ultimately, “the smarter folks on both sides said that this makes a real improvement and we will all live to fight another day, Rosenberg says. “I give huge credit to Vitter and Lautenberg because these are not bipartisan times, especially given how divisive issues like environment, health, and safety,” he adds.

According to Lautenberg’s statement, The Chemical Safety Improvement Act of 2013 requires all active chemicals in commerce to be evaluated for safety and labeled as either “high” or “low” priority chemical based on potential risk to human health and the environment.  For high-priority chemicals, EPA must conduct further safety evaluations.  If a chemical is found to be unsafe, EPA has the necessary authority to take action, ranging from labeling requirements to the full phase-out or ban of a chemical. The legislation also allows EPA to secure necessary health and safety information from chemical manufacturers, while directing EPA to rely first on existing information to avoid duplicative testing, and protects trade secrets and intellectual property from disclosure. The bill requires EPA to evaluate the risks posed to particularly vulnerable populations, such as children and pregnant women, when evaluating the safety of a chemical—a provision not included in TSCA.

Democrats and environmental groups had been pushing for a modernized TSCA to include the same language for risk assessment as the Food Quality Protection Act, which states that EPA must determine whether pesticides pose “reasonable certainty of no harm,” instead of TSCA's current mandate to ensure chemicals do not pose an  “unreasonable risk to health or the environment.” But unlike pesticides, where all uses of the chemicals are known and exposure is carefully controlled, chemicals regulated under TSCA are used in too many downstream applications to ensure zero risks, Rosenberg says. Democrats and Republicans reached a compromise—keeping the current language but making it easier for EPA to determine what constituted unreasonable risk, he adds.

NGOs had also wanted all new chemicals to be subject to an extensive EPA review—a provision that would have slowed the introduction of new, often more sustainable alternatives into the market—but settled for increased transparency from the EPA. “Essentially, the EPA doesn’t have a mandate under TSCA to review new chemicals. It has been, but NGOs believe it either isn’t happening or is inadequate,” Rosenberg says. EPA now has to say whether or not a chemical is likely or unlikely to meet safety standards, and whether or not it plans to take actions like requesting additional information from the manufacturer.

Rosenberg says the Chemical Safety Improvement Act also includes a creative and workable approach to managing the state-level regulations that had been a major factor in getting industry to push for TSCA reform in the first place. States are blocked from regulating chemicals that EPA has designated as “low priority,” during safety evaluations. If a chemical is listed as “high priority,” then states must wait for EPA to take action. If EPA does take action, the state cannot take the opposite action; if EPA fails to act, then the state action is allowed. 

Rosenberg says the bill is likely to be approved by the full Senate, but the heavier lifting will be needed in the House of Representatives.

Bergeson says it remains unclear whether the bill will be embraced by a sufficient number of Democrats, but the House “needs to engage soon” to keep the momentum going.

The Lautenberg-Vitter Chemical Safety Improvement Act of 2013 is co-sponsored by U.S. Senators Kirsten Gillibrand (D-NY), Mike Crapo (R-ID), Richard Durbin (D-IL), Lamar Alexander (R-TN), Charles Schumer (D-NY), James Inhofe (R-OK), Mary Landrieu (D-LA), Susan Collins (R-ME), Joe Manchin (D-WV), Marco Rubio (R-FL), Robert Menendez (D-NJ), and John Hoeven (R-ND).