Despite Clearing Committee, TSCA Bill Has Long Road Ahead, Senators Say

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By David Schultz and John Herzfeld

May 1 — Two senators behind the landmark bill to overhaul the Toxic Substances Control Act said the legislation, despite clearing a Senate committee, still has many hurdles to clear and may not make it to the president's desk for months.

Sen. Tom Udall (D-N.M.), the main backer of the bill, said during a May 1 online town hall that the full Senate's consideration of the bill could last three to six weeks because other senators want to add amendments to it.

In addition, Sen. Thomas R. Carper (D-Del.) told Bloomberg BNA that the president needs to throw his support behind the bill to help ensure its passage.

However, there will be no action on the bill in the Senate for at least several weeks. According to Udall, Senate Majority Leader Mitch McConnell (R-Ky.) told him that S. 697, the bill to overhaul TSCA, “could be on the floor of the Senate in June.”

The bill, which would be the first major change to TSCA in nearly 40 years, cleared the Senate Environment and Public Works Committee on April 28 on a 15-5 vote. The bill had the backing of four Democrats and 11 Republicans.

The majority leader's office did not respond to our requests for comment in time for this story.

President Should State Position 

Another key proponent of the TSCA reform bill, Carper, said the bill would benefit from the White House stating its position on the legislation.

In a May 1 interview with Bloomberg BNA, Carper said he’d like to see a Statement of Administration Position signaling that President Barack Obama would sign any bill reasonably close to the Senate version.

Carper said he plans to support the committee bill on the Senate floor and through any House-Senate conference proceeding.

One amendment that failed in committee would have required the Environmental Protection Agency to consider the proximity of a chemical’s storage to drinking water sources in determining whether to give it a high-priority assessment.

That vote on that amendment, backed by environmental and health groups, was “a jump ball” in committee, Carper said. If the measure is offered on the Senate floor, it would be another close call.

Pointing to concerns that such an amendment would kill the bill, Carper said the challenge will be “figuring out how to address this legitimate need.” Bill supporters are “looking for a compromise” that would meet the goal of protecting drinking water, either through this legislation or by other means.

Central to the drinking water issue is whether oversight by the Centers for Disease Control and Prevention and the Public Health Service is sufficient as currently structured, or whether new legislative authority under TSCA is needed to bring in the EPA.

“The question is: Is it being addressed now?” Carper said, saying he hoped it would be answered “based on the facts, not emotion.”

What he wouldn’t support, however, is any “poison pill” amendment, he said, one that would sabotage Senate passage of the bill or cost it so many votes that either the House or the president won’t back it.

If the bill passes the Senate with 80 votes, “that would send a very strong message to the House that we’re serious about this,” Carper said. By contrast, he said, Senate passage with 50 to 54 votes wouldn’t be enough to bring the House along.

Friendship With Boxer Ended 

The role of states in regulating toxic chemicals remains controversial, Carper said, with the business community pleading for a single national standard to replace a “patchwork quilt” of 47 state laws.

Carper said the push for a single national approach had drawn vociferous opposition from Sen. Barbara Boxer (D-Calif.), the committee’s ranking Democrat, who sought to protect the role of California’s regulatory program in the TSCA scheme.

With his support for the bill, he said, his and Boxer’s friendship of more than 30 years “basically ended.”

He defended the committee bill as having offered an “elegant compromise” to the states’ rights issue by allowing states to enforce their regulations if they match federal requirements, Carper said.

The bill had won bipartisan committee passage by satisfying concerns raised by three Democratic members, Sens. Cory Booker (D-N.J.), Jeff Merkley (D-Ore.) and Sheldon Whitehouse (D-R.I.), Carper said.

While not every environmental and public health organization backs the committee bill, he said, support is growing and some stakeholders have signaled they’ll stay neutral as it moves forward. Senior EPA officials, he said, have privately told him they commend the committee’s work.

Former Governor’s View 

Asked to comment as a former two-term governor on the states’ rights aspects of the debate, Carper said that the constitution reserves powers to the states where the federal government “fails to meet a legitimate need.”

But in the 21st century, he said, it’s hard for companies to follow separate regulatory regimes for each state. The answer, he said, is to “use common sense, get a lot of ideas from everybody, and communicate, compromise and collaborate.”

Congress has failed to revise TSCA for more than 35 years, Carper said, and if differences can be set aside to get it done now, it may provide a “template” for bipartisan cooperation on other issues, ranging from trade and immigration to transportation and cybersecurity.

To contact the reporter on this story: David Schultz in Washington at dschultz@bna.com and John Herzfeld in New York at jherzfeld@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com