iA Senate Environment and Public Works Committee hearing held on July 31, 2013 provided lawmakers with a breadth of perspectives on Toxic Substances Control Act (TSCA) reform.[1] It also gave observers a window into the possible future of the bipartisan Chemical Safety Improvement Act (CSIA), S. 1009.[2] The hearing featured three panels comprising nineteen witnesses in total.[3]
In opening the hearing, Committee Chairman Barbara Boxer (D-CA) expressed opposition to the CSIA, preferring instead the Safe Chemicals Act (SCA), S. 696, introduced earlier this year by Senator Lautenberg (D-NJ, who died shortly afterward) with only Democratic support.[4] In contrast, some other Senators showed eagerness to use the CSIA, with some changes, as the Senate’s vehicle for TSCA modernization. Ultimately, Senator Boxer, too, indicated that she intends to work with stakeholders and other Senators to seek improvements to the CSIA.
Hearing Overview
Federal coordination with states and preemption of state and local chemical management regulations were major themes of the hearing. The SCA would provide for no federal preemption of state or local chemical restrictions except where compliance with them and federal requirements would be impossible. Under the CSIA, unless a state or locality were to obtain a waiver, the bill would preempt the application of new prohibitions or restrictions on manufacturing, processing, distribution in commerce, or use of chemicals, on a chemical-by-chemical basis, after prioritization of a chemical by EPA as high or low priority for safety assessment. It would also preempt application of existing prohibitions or restrictions to a chemical after issuance of a safety determination for that chemical. Duplicative testing rules would also be preempted. The bill aims to put the emphasis on greater state involvement in EPA’s decisionmaking under TSCA instead of state-by-state regulation of chemicals. State or local requirements related to water quality, air quality, waste management, end-of-life for chemicals or products, or reporting requirements would not be preempted. These preemption measures are analogous to those in TSCA currently, but would be triggered by new EPA actions under the CSIA’s chemical prioritization and assessment framework.
The CSIA provides that EPA safety determinations would be admissible in state as well as federal courts, and would be determinative of whether a chemical meets the risk-based safety standard (no unreasonable risk of harm to human health or the environment under the intended conditions of use addressed in the determination). Several witnesses tackled the question of whether this provision would preempt or control the outcome of toxic tort cases.
The first panel of the hearing included representatives of the state governments of California and Washington, who spoke in opposition to the CSIA’s preemption provisions, and a representative from the West Virginia Department of Environmental Protection, who spoke in favor of the bill in general. Among the witnesses as well as the Senators in attendance, there was an evident divide between those larger states with their own robust environmental and chemicals management regimes, who were generally more concerned about the CSIA’s preemption provisions, and smaller or more conservative states, including states with laws preventing them from adopting environmental regulations more stringent than those of the federal government. Position papers and letters from various state Attorneys General and from the National Congress of State Legislators voicing concerns about the CSIA’s preemption provisions were added to the written record for the hearing. However, Senators Vitter (R-LA) and Udall (D-NM) explained that it was not the CSIA’s intent to preempt state programs like California’s Proposition 65, and that they were collaborating on clarifying amendments to the preemption provisions. Senators Gillibrand (D-NY) and Boxer, in turn, solicited suggestions for new preemption language from the California Attorney General’s Office, and promised to circulate any proposed revised provisions to the ten state Attorneys General who have written to the Senate in opposition to the CSIA, to seek their approval before moving forward.
The second and third panels offered the perspectives of sixteen witnesses from health and environmental non-profits, law firms, academics, various industry sectors, and two former heads of EPA’s TSCA office (now the Office of Chemical Safety and Pollution Prevention) from both Democratic and Republican administrations. Mark Duvall defended the preemption provision against criticism and noted its significant limitations. He also said that the CSIA would have little impact on tort suits. The former EPA officials, Steve Owens and Linda Fisher, agreed that the CSIA was a significant breakthrough and an improvement over current TSCA in numerous respects. They especially pointed to the creation of a chemical review framework and easier paths for EPA to gather information and manage risks. Owens also stated that the CSIA was consistent with the Obama Administration’s principles for TSCA reform (which he had helped develop), except for the absence of a dedicated funding source and more targeted support for green chemistry.
On other topics, some speakers suggested that the Committee add enforceable deadlines to the CSIA; streamline EPA’s preliminary framework-establishing tasks; expand on the bill’s protections for vulnerable populations; clarify the risk-based safety standard; change the “substantial evidence” standard for judicial review; and cut back or clarify the bill’s provisions on use of safety determinations in court. There were also brief references to minimum data sets and other issues. Significantly, the primary areas of dispute seemed limited in number. With regard to the deadline and framework establishment issues, Steve Owens and Linda Fisher suggested that the Senate solicit from EPA a workload analysis for the tasks set forth in the bill.
Next Steps for the CSIA
Despite Chairman Boxer’s continued support for the SCA, the CSIA remains the primary focus of attention for the Senate’s TSCA modernization efforts. Senator Boxer said she planned to prepare a revised bill that incorporates the best features of both bills, although she made clear her view that the CSIA’s preemption provision must change. Senator Vitter indicated that he and Senator Udall (the chairman of the Superfund, Toxics and Environmental Health Subcommittee formerly chaired by Senator Lautenberg) were coordinating amendments and clarifications to the CSIA, and were making real progress. (A spat between Senators Boxer and Vitter at that point illustrated a struggle for power over control of the amendment process.)
While Senator Boxer would prefer no preemption provision, as in the SCA, various compromises likely to be suggested will probably be narrower than that of the CSIA. They may base preemption on EPA taking risk management action (rather than on EPA taking preliminary steps, as under the CSIA). They may allow state regulations that are identical to EPA’s TSCA requirements (thus effectively allowing for dual federal and state enforcement). They may allow state restrictions that are more protective than TSCA requirements (thus encouraging states to go beyond limited EPA action). They may cut back on the requirements for states to obtain a waiver (thus making it easier to avoid preemption where it would otherwise apply). The provision addressing use of safety determinations in tort suits may be dropped.
Other changes likely to be suggested relate to deadlines. There may be deadlines for EPA to complete its procedural rulemakings to set up the evaluation process, and there may be goals or timetables for EPA to complete its prioritization, safety determination, and risk management steps.
It remains to be seen whether such changes can be made without jeopardizing what Senator Inhofe (R-OK) called the “delicate compromise” of the current, bipartisan-supported version of the CSIA. On the other hand, it will be difficult for the CSIA to advance out of the Environment and Public Works Committee without the support of its Chairman, Senator Boxer. Her support may depend in turn on the support of the California State Attorney General and perhaps some additional health and environmental nongovernmental organizations. Of course, even strong support in the full Senate is no guarantee that a revised CSIA can pass the Republican-led House of Representatives.
The Senate is now in recess until after Labor Day. However, the staffs of Senators Vitter and Udall have been collecting stakeholder input for weeks. They are likely to continue working to improve the CSIA. The month of August may therefore be a critical time for stakeholders to rally support and provide input and ideas. It is conceivable that a revised CSIA could be released fairly soon after the Senate’s return from its August recess.
[1] Senate Environment & Public Works Committee, Full Committee hearing, “Strengthening Public Health Protections by Addressing Toxic Chemical Threats” (July 31, 2013), hearing materials and archived webcast available at http://www.epw.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=15d8775e-f02a-6ab7-1973-8ea6ce1196c7.
[2] S. 1009 available at http://thomas.loc.gov/cgi-bin/t2GPO/http://www.gpo.gov/fdsys/pkg/BILLS-113s1009is/pdf/BILLS-113s1009is.pdf; latest bipartisan cosponsorship available athttp://beta.congress.gov/bill/113th/senate-bill/1009/cosponsors. See also Beveridge & Diamond, P.C., Bipartisan TSCA Modernization Bill, Chemical Safety Improvement Act, Introduced in Senate (May 24, 2013), http://www.bdlaw.com/news-1478.html.
[3] Written testimony of Mark N. Duvall Before the Senate Committee on Environment and Public Works (July 31, 2013), available at http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=f52cb391-973b-423c-993f-c85eca10e41a.
[4] See Beveridge & Diamond, P.C., “Safe Chemicals Act,” First TSCA Reform Bill of 113th Congress, Reintroduced (Apr. 16, 2013), http://www.bdlaw.com/news-1462.html.
