TSCA Redux: Rejuvenating a Timeworn Statute
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THE FORUM
TSCA Redux:
Rejuvenating a Timeworn Statute
A
re you in favor of TSCA reform? Who isn’t? Debate has been heating up, as Senate Environ-
Shortly after the Toxic Substances Control ment Committee chair Barbara Boxer of California
Act’s passage 38 years ago, it was being criti- has sought concessions intended to limit the bill’s
cized for grandfathering existing substances, and preemption language and a lack of firm deadlines
some say it has been effectively neutered by the Fifth for EPA action. And the need to fund the new leg-
Circuit’s 1991 decision in Corrosion Proof Fittings v. islation’s expansive testing mandates at a time of
EPA that sets a high bar for the agency to be able constrained budgets has led to debate over possibly
to ban substances that put public health and the including unpopular user fees.
environment at “unreasonable risk.” Meanwhile, What measures that would pass both houses of
other countries, notably the EU with its REACH Congress are necessary and sufficient for making
system, have passed much more expansive regimes, the Toxic Substances Control Act live up to its
and states such as California have their own laws. name, as a modern statute with a sensible regu-
This debate marks the one-year anniversary of the latory program that will protect the public and
introduction of S. 1009, which has a dozen sponsors the environment while allowing chemical manu-
from each party in the Senate, and there is also a new facturers the freedom to benefit society by devel-
bill in the House Energy and Commerce Committee oping new chemicals for new purposes? How can
that is beginning to catch interest. S. 1009 represents both new chemicals and the huge inventory of ex-
a compromise between Environment Committee isting chemicals be prioritized for testing? What
ranking member David Vitter and the late Frank measures are necessary to allow the states to con-
Lautenberg for a bill intended to fix the law’s many tinue their role in environmental protection?
flaws. But whether it will win passage to the floor, Incidentally, officials in EPA’s toxics office de-
gain a majority of the Senate, then mesh with a bill clined the opportunity to participate in this de-
that can pass the House remains to be seen. bate.
44 | T H E E N V I R O N M E N T A L F O R U M Copyright © 2014, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2014“Whatever window of “Compromise is the only
opportunity to reform way reform of the Toxic
the Toxic Substances Substances Control Act
Control Act exists, it is will happen.”
closing.”
Lynn L. Bergeson Richard A. Denison
Managing Partner Lead Senior Scientist
Bergeson & Campbell, P.C. Environmental Defense Fund
“States have stepped in “Reform must balance
to fill the regulatory protecting human
void left by a federal health and the
law that nearly all environment with
stakeholders agree has the need to keep the
failed to achieve its innovation pipeline
intended purpose.” flowing.”
Kathy Kinsey Ann R. Klee
Deputy Secretary for Regulatory Vice President, Environment,
Programs and Operations Health & Safety
Maryland Department of the General Electric
Environment
“States should continue “We must ensure that
to play a role in EPA will have the
chemical regulation by tools it needs to protect
contributing expertise citizens from dangerous
to EPA’s development chemicals and require it
of national to review the chemicals
standards.” in commerce today.”
John Shimkus Tom Udall
Chair Chair
House Environment & the Senate Subcommittee on
Economy Subcommittee Superfund, Toxics, and
Environmental Health
Copyright © 2014, Environmental Law Institute®, Washington, D.C. www.eli.org. M A Y / J U N E 2 0 1 4 | 45
Reprinted by permission from The Environmental Forum®, May/June 2014T h e F o r u m
Do It Now, flawed provisions, may be the best
hope for success.
suggested by provisions in S. 1009.
Third, as important as any other
Or It May First, reform legislation must
provide EPA with clear requirements
area is the urgent need to ensure
that EPA has adequate funds to im-
Never Be Done and authority to prioritize, assess, plement the program. Even the most
and impose restrictions on exist- perfect prioritization process will
Lynn L. Bergeson ing chemicals posing risks and do fail if EPA lacks resources to do its
so according to a deadline-driven job. It is time to consider adopting a
W
hatever window of op- scheme. Neither measure does this. fee program similar to the approach
portunity exists to reform S. 1009 is bloated with multiple, taken under the Pesticide Registra-
the Toxic Substances confusing “assessment frameworks.” tion Improvement Act. EPA assesses
Control Act is closing. This is not Neither S. 1009 nor the House draft fees under PRIA on pesticide regis-
only because the mid-term elec- provides clear and direct authority tration applications to pay for some
tions are fast approaching, or that to require testing needed to support fraction of the cost of EPA’s services.
there are too few legislative days left prioritization. While a fee for service program
this session, or even that Congress While both address to some ex- would appear impossible, our collec-
is polarized and achieving passage tent the problems in using TSCA tive indifference to the fiscal realities
of complicated chemical legislation Section 6 to control existing chemi- presented by the chronic underfund-
seems intuitively beyond reach. cals, it is difficult to see how either ing of the TSCA program — and
It is also because the emergence as presently drafted would succeed. the silence on this critical topic in
of chemical management frame- The absence of deadlines in these the Senate and House TSCA reform
works like the EU’s Registration, measures is counter-productive if drafts considered since the late Sena-
Evaluation, Authorization and not irrational. Both Canada and the tor Frank Lautenberg (D-NJ) first
Restriction of Chemicals, Korea EU have managed to prioritize, as- introduced TSCA reform legislation
REACH, and Canada’s Chemicals sess, and control existing chemicals, years ago — is reckless.
Management Plan; state programs and so should we since without Reform measures are far from
like California’s Safer Consumer deadlines, even a more refined as- aligned. Whatever momentum that
Products Regulations; private regu- sessment framework will languish. exists will dissipate in a potentially
latory, stewardship, and retailer ini- Second, a determination of dramatically new Congress after
tiatives; and the inevitable chemical chemical safety should be based the mid-term elections. Given the
deselection that is underway as an solely on hazard data, Structural uncertainties that change invites,
outgrowth of these developments Activity Relationship modeling or we may well be on a path to just say
have diffused the urgency and other predictive methodology, or no permanently to TSCA reform.
perhaps even the need for TSCA both, and exposure information. We would, in so doing, endure the
reform. Any regulatory response to such national indignity of having our
As these other trends continue a determination under the House commitment to chemical safety be
to grow, TSCA, reformed or oth- measure must be “proportional” to dictated not by our unwavering
erwise, becomes increasingly ir- the avoided risk, be “cost-effective,” pledge to protect human health and
relevant. Absent TSCA reform now and impose restrictions only when the environment, but by the chemi-
— in this Congress — emerging “technically and economically fea- cal governance frameworks, policies,
global chemical frameworks will sible alternatives” are available. and practices of others.
continue to evolve, at considerable This is an impossibly high stan-
cost to U.S. credibility as a global dard and appears equivalent to re- Lynn L. Bergeson is managing partner of
leader and, of course, to the chemi- imposing the stifling “least burden- Bergeson & Campbell, P.C., a Washington,
cal community’s commitment to some” requirement now applied un- D.C., law firm. She is also president of The
protect environmental and human der TSCA and could well make the Acta Group, with offices in Washington, D.C.,
health. situation worse. A more balanced Manchester, UK, and Beijing, China, and
Neither S. 1009 nor the House approach would have EPA consider president of B&C Consortia Management,
discussion draft as written would such factors in taking a control ac- L.L.C., with offices in Washington, D.C.
pass, and rightly so given their tion and otherwise authorize the
failure to address fully TSCA’s agency to grant time-limited exemp-
fundamental flaws. To salvage the tions or other waivers based on a
momentum that has developed, fo- determination of critical need or the
cusing narrowly and fixing only on absence of viable alternatives, as the
the most important of TSCA’s many EU has done under REACH and as
46 | T H E E N V I R O N M E N T A L F O R U M Copyright © 2014, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2014T h e F o r u m
Chemical Safety (D-NJ) assessed the landscape last
year and saw the need for compro-
for a new chemical. Where that in-
formation is insufficient, EPA should
Reform: Will the mise. He took the political risk of
working on legislation with Senator
be able to require more — or impose
conditions sufficient to address po-
Center Hold? David Vitter (R-LA), who had been tential risks even in its absence;
about to introduce his own legisla- Preemption. States should be able
Richard A. Denison tion. The result was the first-ever bi- to act to address a chemical’s risks
partisan legislation to reform TSCA, wherever EPA has not, or when they
C
ompromise is tough. It can the Chemical Safety Improvement can make the case for going further.
be thankless and unsatisfying, Act. Preemption should apply prospec-
and, by definition, you don’t Sadly, Senator Lautenberg died tively, and when, but only when,
get everything you want. But it’s the shortly after CSIA was introduced. the agency has all the information
only way reform of the Toxic Sub- But the legislation remains very it needs to make a definitive safety
stances Control Act will happen. much alive, and although it was (and decision and takes final action on a
Nearly everyone, from environ- is) far from perfect, there has been chemical. Requirements that do not
mentalists to industry honchos, major progress thanks to the continu- directly restrict a chemical’s manufac-
agrees TSCA is badly broken. But ing work of Senator Vitter and Sena- ture or use — such as for reporting,
start talking about how to fix the tor Tom Udall (D-NM) to address warnings, monitoring or assessment,
problems and you’ll find there are major concerns raised about the bill which do not unduly impede inter-
legitimate core principles held by and strengthen its health protections. state commerce — should remain
different stakeholders that are dif- Additional progress is endan- available to states; and
ficult to reconcile. Here are just three gered, however, as some players have Confidential business information.
examples: fallen back to their core principles Legitimate trade secrets should be
New chemicals. The common-sense and hardened their positions. And protected, but not information on
notion that new chemicals should after holding a promising series of health and environmental effects or
be shown safe before entering the constructive, balanced hearings on general information on a chemical’s
market, versus the desire not to hin- TSCA, the House majority floated use. Identities of chemicals should
der innovation or U.S. companies’ reform legislation — albeit a discus- generally be available once they enter
ability to compete globally by getting sion draft rather than a bill — that commerce. Up-front substantiation
chemicals to market quickly; tilts heavily in industry’s favor. and EPA approval of claims should
Preemption. The appeal of a single These challenges have led some be required. Claims should gener-
federal oversight system that does not stakeholders to consider forgoing the ally be time-limited but renewable
impede interstate commerce, versus present opportunity and either opt upon resubstantiation. State and local
the view that states have the right to to retreat to the status quo or try to governments, medical personnel, first
act to protect their residents; and forestall action and wait for more responders, and health and environ-
Confidential business information. political advantage in the future. In mental officials should have access to
The right of citizens, consumers, my view, this notion of an easier path confidential business information.
and the market to information on any time in the foreseeable future The opportunity before us is ap-
potential risks of chemicals they may is illusory. The conflicting needs of parent: Our best chance to fix an
use or be exposed to, versus assurance stakeholders are so fundamental, and outdated law that serves nobody’s
that legitimate trade secrets submit- the political climate so polarized, that interests. The alternative — sticking
ted to regulators will not generally be counting on them to change appre- with a piecemeal system that under-
disclosed. ciably is wishful at best. mines consumer confidence and puts
As an active participant in the The only recourse is to do the hard our health at risk — is no alternative
past decade’s debate, I’ve seen first- work of negotiating to forge a legiti- at all. All it takes to seize this oppor-
hand how such conflicting principles mate and fair compromise that deliv- tunity is to agree that compromise
complicate — politically and sub- ers an efficient and effective chemi- doesn’t have to be a dirty word.
stantively — prospects for achieving cals management system. Let me use
reform. I’ve also learned that progress my earlier three examples to illustrate Richard A. Denison, Ph.D., is a lead
comes only when both sides accept what common ground looks like: senior scientist with Environmental Defense
they have to give something to get New chemicals. EPA should make Fund.
something. Conversely, progress stalls an affirmative determination of safety
when stakeholders get greedy. The before market entry, but using a stan-
past year has seen both tendencies. dard that allows prompt review based
The late Senator Frank Lautenberg on the limited information available
Copyright © 2014, Environmental Law Institute®, Washington, D.C. www.eli.org. M A Y / J U N E 2 0 1 4 | 47
Reprinted by permission from The Environmental Forum®, May/June 2014T h e F o r u m
Neither of These is based solely on exposure and haz-
ard assessments, without regard to
may request a waiver of preemption,
provided that the state law or regula-
Bills Address the economic or other factors, and that
is protective of our most vulnerable
tion doesn’t prevent compliance with
the federal law, provides a significantly
Law’s Failings populations; higher level of protection, and doesn’t
A chemical prioritization process unduly burden interstate commerce.
Kathy Kinsey based on adequate data that provides Because EPA has taken so few actions
EPA with unfettered authority to under TSCA, preemption of state
M
any states are closely follow- require testing and new information chemical management laws has rarely
ing the progress of federal necessary to properly assess chemical been triggered.
TSCA reform legislation. toxicity; Both the Senate and House bills
Over the course of the nearly 40 years An emphasis on the development would expand state preemption be-
since the Toxic Substances Control of safer alternatives to dangerous yond the provisions of the current
Act was passed, states have stepped chemicals; law, and would actually weaken,
in to fill the regulatory void left by a Reasonable timelines for EPA to rather than strengthen, chemicals
federal law that nearly all stakeholders make prioritization decisions, and management in this country. Logi-
agree has failed to achieve its intended complete safety assessments and de- cally, the need for any state preemp-
purpose. terminations; tion is suspect. If TSCA reform is
Today, 34 states have enacted one Funding for EPA, perhaps through successful in providing EPA with the
or more chemical management laws fees paid by chemical manufacturers, tools necessary to effectively manage
that range in scope from bans on that is adequate to implement the law toxic chemicals in commerce, state
individual toxic chemicals, such as and complete safety assessments in efforts will no longer be necessary.
brominated flame retardants, to more a reasonable time frame on the tens As no state can afford unnecessary
comprehensive chemical management of thousands of existing chemicals in programs, preemption would be a
regimes, such as California’s Safer commerce that have not been subject moot issue. On the other hand, if
Consumer Products law. Successful to assessment; TSCA reform proves ineffective, com-
state regulatory initiatives have led to Greater public and state access to mon sense demands that the states be
bans on Bisphenol-A, the distribution chemical identity and other informa- granted broad authority to take ac-
and sale of children’s products con- tion to which access is frequently tions needed to protect their citizens.
taining lead and cadmium, and un- denied based on confidential business There exists a long and successful
necessary uses of mercury in products, information claims; history of state-federal co-regulation
to name just a few. A limit on the duration of all exist- in the area of environmental protec-
The Chemical Safety Improvement ing and future confidential business tion. Concerns about a “patchwork”
Act, introduced in May 2013 by the information claims; of conflicting or duplicative regula-
now late Senator Frank Lautenberg Judicial review of decisions to cat- tions are unfounded. States have a
(D-NJ) and Senator David Vitter egorize chemicals as low priority; and strong interest in a robust federal
(R-LA), and the Chemicals in Com- Preservation of state chemicals man- chemicals law and stand ready to
merce Act, a House discussion draft agement authority. work with Congress to advance TSCA
recently released by Representative Considerable discussion has reform, which if effective would free
John Shimkus (R-IL), would substan- been focused on state preemption up scarce state resources to pursue
tially revise TSCA. Unfortunately, and the appropriate role of states in other important regulatory mandates.
neither of these bills adequately ad- a reformed chemicals management Effective implementation of any
dress the law’s failings. Worse, as writ- regime — a subject of particular im- comprehensive regulatory regime is
ten, they both include onerous pre- portance to state regulators. dependent on political will and the
emption provisions that will eviscerate Today, Section 18 of TSCA gener- dedication of adequate resources.
successful state programs and cripple ally preserves state power to regulate Because it is impossible to know how
the states’ ability to take needed ac- a chemical substance, a chemical well a reformed TSCA ultimately will
tions going forward. mixture, or a chemical-containing be implemented, preservation of state
So, what should effective TSCA article unless EPA prescribes a rule authority serves as an important regu-
reform legislation look like? There are or order for the chemical or article latory backstop, critical to protecting
many important details in any major under Sections 5 or 6. Even then, public health and our environment.
piece of legislation, but from a state states can enforce an identical rule or
perspective, the most important com- order, regulate under the authority Kathy Kinsey is the deputy secretary for
ponents of a modernized TSCA are: of another federal law, or ban a sub- regulatory programs and operations at the
A health-based safety standard that stance or mixture. In addition, states Maryland Department of the Environment.
48 | T H E E N V I R O N M E N T A L F O R U M Copyright © 2014, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2014T h e F o r u m
Keep Innovation Second, EPA’s New Chemicals
Program has succeeded in prevent-
starting point being the most recent
TSCA Chemical Data Reporting Rule,
Flowing While ing numerous “toxic” chemicals from
reaching the market without appropri-
information that EPA has;
Avoid duplication of effort and re-
Protecting Public ate risk management measures. Be- duce EPA’s costs by taking advantage
tween the establishment of the TSCA of Canada’s experience in identifying,
Ann R. Klee Inventory and the end of FY 2010, screening, prioritizing, and, where ap-
EPA reviewed more than 36,000 Pre- propriate, further regulating chemicals,
E
very day, millions of people fly Manufacture Notices and more than provided that U.S.-based stakeholders
on airplanes powered by GE 13,000 PMN exemption notices. have a reasonable opportunity to chal-
engines; eat foods that were Those reviews led to more than 4,000 lenge Canada’s approach and conclu-
cooked and kept fresh with GE appli- regulatory actions, withdrawals of sions for any given chemical;
ances; use smart phones and tablets PMNs, and voluntary testing actions. Focus on chemicals that, by virtue of
powered with electricity generated by Third, while there are those who their hazard characteristics and expo-
GE gas turbines; read by the light of a cite the European Union’s Registration, sure potential, present real, as opposed
GE LED lamp; or undergo diagnostic Evaluation, Authorization, and Restric- to speculative, risks;
tests using GE MRI machines. All of tion of Chemicals program as a model Recognize that many risks associated
these products use, and are made of, for managing the risks of chemicals, with the intended use of a chemical are
chemicals. it is hard to find quantifiable benefits, managed by programs administered by
If GE and other innovators are notwithstanding REACH’s complexity the Consumer Product Safety Com-
going to continue to develop, com- and costs. Of the roughly 47,000 dos- mission, Food and Drug Administra-
mercialize, and improve products that siers covering approximately 12,000 tion, Occupational Safety and Health
meet societal demands and enhance chemicals submitted to the European Administration, and EPA itself under
the quality of life, TSCA reform Chemicals Agency as of March 19, the Federal Insecticide, Fungicide, and
must strike the right balance between only about 1,200 have been reviewed Rodenticide Act;
protecting human health and the en- and the reviews were largely limited Conserve EPA’s resources by authoriz-
vironment with the need to keep the to determining whether the dossiers ing regulation of chemicals in articles
innovation pipeline flowing. We can contain all of the required information. only where it is reasonable to expect,
do both. Through 2013, fewer than one given the nature and intended use
As we consider TSCA reform, we hundred chemicals had been selected of the article, that there will be non-
need a common understanding of the for “evaluation” by ECHA to deter- occupational exposures to the chemical
fundamental facts. mine whether they present a human that warrant further controls;
First, no one really knows how health or environmental risk, and Recognize that there will not
many chemicals are in commerce in far fewer have been subjected to “re- always be a clear answer to the ques-
the United States today. The current striction” or “authorization.” In the tion of whether a “safer” alternative
TSCA Inventory of approximately meantime, manufacturers are thinking is available (see, for example, EPA’s
84,000 unique chemical substances is twice about producing new products recent Alternatives Assessment for
considered to include many that are in the EU because they do not know the flame retardant decabromodi-
no longer manufactured in, or im- for certain whether a particular use of a phenyl ether); and
ported into, the United States. Data chemical will be permitted. Provide a national system for the
from the most recent TSCA Chemical With these facts in mind, a mod- management of chemical risks that
Data Reporting Rule reports indicate ernized TSCA is most likely to provide promotes the free flow of goods
that fewer than 8,000 chemicals were greater protection to human health across state lines, and reduces the
manufactured or imported in volumes and the environment while allowing perceived need for states to adopt
of 25,000 pounds or more at a total companies to manufacture the prod- their own chemical management
of 4,700 sites during 2011. Of these ucts that our dynamic society needs regulations.
chemicals, only about 2,000 were re- if reform follows the following prin- A modernized TSCA that reflects
ported to have consumer uses. ciples: the principles listed above will enable
Significantly, responsible manufac- Build on existing law and practices, EPA to carry out its mission to protect
turers have been working for years to with appropriate adjustments to EPA’s human health and the environment
reduce the production and use of “tox- ability to obtain information needed to without unduly impeding the innova-
ic” chemicals to prevent worker expo- prioritize chemicals for risk assessment tion pipeline.
sure issues, address global labeling re- and to establish sensible risk manage-
quirements and customer expectations, ment measures; Ann R. Klee is vice president, environment,
and limit potential future liability. Reset the TSCA Inventory, with the health & safety, of General Electric.
Copyright © 2014, Environmental Law Institute®, Washington, D.C. www.eli.org. M A Y / J U N E 2 0 1 4 | 49
Reprinted by permission from The Environmental Forum®, May/June 2014T h e F o r u m
A Bipartisan efficient and effective tools to get the
information it needs to determine
tions to issues of public health and
safety, while EPA action on certain
Consensus Seems the safety of those chemicals. And
we agree that EPA should have the
chemicals has been hindered by the
limitations of existing law. But the
Within Reach authority to impose requirements growing complexity of this regula-
and restrictions on those chemicals tory approach is unsustainable, as it
John Shimkus that pose unreasonable risks. will inevitably become confusing to
That’s great for consumers, but consumers and costly to industry.
O
ver the past year, my Envi- what does it have to do with work- America has resolved a similar
ronment and the Economy ers? problem of state versus national
Subcommittee has held six Improving public confidence in standards before. Before rail trans-
hearings on TSCA reform. In those the safety of American chemicals portation, there was little need to
sessions, we heard from multiple facilitates both interstate and inter- standardize time across the country.
expert witnesses as we studied the national commerce. Put yourself in It didn’t matter that noon in Chi-
almost four-decade-old chemical the shoes of an investor contemplat- cago was 11:50 AM in St. Louis and
safety law section by section, think- ing where to build a new chemical 12:07 PM in Indianapolis. But the
ing about how we could make it manufacturing plant. You’d examine demands of interstate commerce
work better. The resulting legisla- potential sites based largely on three and public safety changed all of that,
tion, the Chemicals in Commerce criteria: the availability and price leading to the establishment of four
Act, was a released on February 27 of feedstocks, particularly oil and national time zones in 1918.
as a discussion draft. gas; the availability of good, reliable The same concept of national
To those unfamiliar with the workers; and access to the market. standards with regional variations
legislative process, I can’t stress America is already producing can be applied to chemicals in com-
enough that our CICA discussion more oil and gas than ever before, merce today just as it was to trains
draft remains a work in progress. and our workers are undeniably on railroads last century. States can
Making laws, good laws at least, is a among the best, brightest and most and should continue to play a role
very dynamic process. And I’m com- productive in the world. This makes in chemical regulation, but by con-
mitted to making TSCA reform a market access the determining factor tributing their expertise to EPA’s
bipartisan and collaborative process for many would-be capital invest- development of a national standard
as well. Based on input from a wide ments in the chemical industry. for those chemicals that have been
variety of stakeholders — includ- Market access has two dimensions: found to pose a risk to human
ing chemical makers, distributors, marketability of the product and health or environmental safety, not
labor unions, environmental groups, trade restrictions. establishing their own regulatory
health and environmental safety In its draft form, CICA would regimes.
professionals, as well as ongoing expand market access in two ways. Can we pass TSCA reform legis-
discussions with my Energy and First and foremost, it would give lation, be it my Chemicals in Com-
Commerce Committee colleagues buyers confidence in chemical prod- merce Act or a compromise bill with
— changes to the CICA draft are ucts, because “Made in America” the Senate that protects consumers
already under consideration. would mean the product meets a and the environment while fa-
Without undermining those new international gold standard for cilitating innovation and economic
positive and ongoing discussions chemical safety. Secondly, by estab- growth? The process to date has
with my colleagues, I welcome this lishing national standards to replace shown me that not only are most of
opportunity to update the environ- the growing patchwork of state regu- my colleagues on both sides of the
mental law community on our prog- lations, CICA would ease the trade aisle willing to try, many are doing
ress. Below, I’ll highlight some of restrictions erected in the absence of their best to get to an answer of yes.
the common ground I think we’ve federal action.
found already and explain why I The issue of preempting state law Representative John Shimkus (R-IL) chairs
think our efforts can yield a law that has been a source of great consterna- the House Environment & the Economy Sub-
benefits both consumers and work- tion throughout the TSCA reform committee, with jurisdiction over toxic waste
ers alike. debate and understandably so. As policy.
So far, I think we agree that con- a conservative Republican, I hold
sumers would benefit from some states’ rights and the virtues of our
closer EPA scrutiny of many chemi- federal system of government in
cals already in commerce. We also high regard. I fully understand why
agree that the agency needs more states have sought their own solu-
50 | T H E E N V I R O N M E N T A L F O R U M Copyright © 2014, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2014T h e F o r u m
Reforming TSCA some of the bipartisan compromise
provisions. Vetting legislation is an im-
an effective federal statute. As in pre-
vious environmental and consumer
So That It Achieves portant part of the process for which
I have deep respect. As a result, I have
protection legislation, a workable
state-federal partnership arrangement
Its Promise been working with Senator Vitter and must be developed.
the Environment and Public Works All of these concerns are impor-
Tom Udall Committee Chairwoman Barbara tant, but they are all workable. And in
Boxer to strengthen and improve the order to make them work, we must be
W
e come into contact with a bill. able to reach a bipartisan agreement.
wide variety of chemicals in We have not yet reached a final There are many differences be-
consumer and household agreement, but I am optimistic. We tween CSIA and earlier, more sweep-
products every day. Most Americans have an important and realistic op- ing chemical reform bills, but we
assume the government has studied portunity to create a toxic chemical should not lose sight of the goal — to
these chemicals and determined they law that works — reaching across actually pass a bill that will improve a
are safe for the public, including chil- party lines to greatly improve one of broken statute responsible for protect-
dren. Yet, because of serious and well- our major environmental and public ing our public health and the environ-
recognized weaknesses in the Toxic health laws — and such chances don’t ment. TSCA has been failing to pro-
Substances Control Act of 1976, we come along very often. For that reason tect American families for nearly 40
actually have very little information, alone, we owe it to the American peo- years. We must roll up our sleeves and
and the Environmental Protection ple to perfect and pass this legislation do the hard work to resolve the differ-
Agency has extremely limited author- and see it signed into law. ences and achieve an effective compro-
ity to regulate chemicals in interstate We are working on several aspects, mise. The alternative is continuing the
commerce. Americans should have but here are three primary issues that status quo indefinitely with more and
confidence that their government is have been raised about the current more chemicals endangering future
reviewing and regulating chemicals in Senate bill to ensure that TSCA re- generations.
products they use. That is why I am form achieves its promise of protect- Many say the current Congress
working to improve TSCA. ing public health and the environment is incapable of such bipartisan com-
In 2012, I cosponsored and voted while supporting innovation. promise. I believe we can, and the
for sweeping legislation to provide First, we must ensure that the EPA late environmental champion, Sena-
strong authority enabling EPA to get will have the tools it needs to protect tor Lautenberg, believed we could as
information and take action to restrict citizens from dangerous chemicals well. The current system has failed to
chemicals. Unfortunately, this legisla- and require it to review the tens of protect our citizens, it has failed to
tion was widely opposed by Senate thousands of chemicals in commerce provide confidence in our regulatory
Republicans. Then, in 2013, there today. This means getting the prioriti- system, and it has failed to provide
was a rare legislative breakthrough. A zation and deadlines right, along with confidence in our consumer products.
new bill, with good but less sweeping specific protections for vulnerable It is in everyone’s interest to have a
authority called the Chemical Safety populations. stronger system to identify dangerous
Improvement Act was introduced by Second, we must protect private chemicals and protect the American
the late Democratic Senator Frank rights of action to hold companies re- public.
Lautenberg of New Jersey and the sponsible and ensure those companies We aren’t there yet, but current
Ranking Republican on the Senate don’t cut corners. Legal experts have drafts represent tremendous progress.
Environment and Public Works Com- raised concerns with the CSIA and its We must resist calls to give up or start
mittee, David Vitter of Louisiana. The impact on private rights of action. As over when we hit roadblocks, and
bill was the last major act by Senator a subcommittee chairman and an ad- we must work through those chal-
Lautenberg in a fight for environmen- vocate for victims, it is not my intent lenges because they will be the same
tal safety that spanned several decades. to preempt private claims. Senator challenges tomorrow. If we do that,
His wife, Bonnie, has told me that Vitter and I agree and have stated this I am confident that we can achieve
Frank believed this effort could save publicly. Changes are absolutely neces- bipartisan legislation that finally gives
more lives than his work to ban smok- sary to make this intent clear through- Americans the protection they de-
ing on airlines. I joined onto this bill out the bill. serve.
with an impressive list of bipartisan Finally, we must address state pre-
Senate cosponsors. emption issues. The current bill is not Senator Tom Udall (D-NM) chairs the Sen-
After the bill was introduced, how- acceptable to some states, including ate Environment and Public Works Subcom-
ever, many health and environmental California and Washington, which mittee on Superfund, Toxics, and Environ-
advocates highlighted concerns with have taken the lead in the absence of mental Health.
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