TSCA Reform Bill Seen as Promising But Road to Enactment Is Uncertain

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By Pat Rizzuto

Industry lawyers and lobbyists are viewing the Chemical Safety Improvement Act (S. 1009) as a promising vehicle for updating the Toxic Substances Control Act, but they told BNA it still faces an uncertain reception in the House and potential objections over state preemption, its impact on tort litigation, and other issues.

Bill Allmond, vice president for government relations at the Society of Chemical Manufacturers & Affiliates, described S. 1009 as a “historic bipartisan effort” that has produced a bill which, on the surface, looks favorable to the small-batch, specialty chemical manufacturers SOCMA represents.

Nonetheless, Allmond was among many policy watchers interviewed by BNA since May 22 who said the legislative road ahead is uncertain.

Allmond told BNA May 24, “I think we are in a honeymoon phase.”

“When everyone wakes up, the honeymoon may end abruptly,” Allmond added.

S. 1009, introduced May 22 by Sens. Frank R. Lautenberg (D-N.J.) and David Vitter (R-La.) along with 14 Democratic and Republican co-sponsors, gained four additional co-sponsors May 23 (37 CRR 609, 5/27/13).

Sens. Tom Harkin (D-Iowa), Patty Murray (D-Wash.), Mark Begich (D-Alaska), and Lisa Murkowski (R-Alaska) are now on board as co-sponsors, Lautenberg's office announced.

Given its strong bipartisan support, this bill appears to be “the vehicle for TSCA reform” in the Senate, said Mark Duvall, cochair of the Chemicals, Products, and Nanotechnology practice group at Beveridge & Diamond, P.C.

The bill's introduction early in the 113th Congress is promising because it provides both Republican and Democratic senators time to further develop the legislation, he told BNA.

Mark Greenwood, a former director of EPA's Office of Pollution Prevention and Toxics who now runs Greenwood Environmental Council PLLC, agreed that the introduction of S. 1009 early in the 113th Congress and its joint sponsorship by a bipartisan group of senators led by Lautenberg and Vitter provided a jump start on securing TSCA-reform.

“It guarantees a good and healthy debate,” Greenwood said.

Rather than wasting time with two dueling bills, the Senate Environment and Public Works Committee, which has jurisdiction over the legislation, can focus on a single bill, he said. The second bill he referenced is the Safe Chemicals Act (S. 696), which Lautenberg introduced April 10, but virtually all observers appear to consider S. 1009 the primary vehicle, with S. 696 no longer in play (37 CRR 432, 4/15/13).

Nonetheless, passage of the Chemical Safety Improvement Act is not likely to be either quick or unanimous, Duvall said.

Herbert Estreicher, a chemist and attorney with Keller and Heckman LLP, echoed that assessment. The Chemical Safety Improvement Act will not be like the 1996 Food Quality Protection Act, which amended the Federal Insecticide, Fungicide, and Rodenticide Act, and passed unanimously in both the House and Senate, Estreicher said.

'Deal Breaker'?

A potential “deal breaker” is the bill's language that says EPA's “safety determination shall be determinative,” Estreicher said.

That means EPA's decision that a chemical does not meet the legislation's safety standard would be admissible in toxic tort cases. Attorneys in such cases would still have to prove exposure and other critical factors, but an EPA decision that a chemical was not safe based on the legislation's standard would be an important factor, Estreicher said.

The bill's fate in the House, meanwhile, is uncertain, said Duvall and Martha Marrapese, a Keller and Heckman attorney who chairs the American Bar Association's Pesticides, Chemical Regulation, and Right-to-Know Committee.

Senate 'Has to Do the Heavy Lifting.'

“The House has expressed little interest in TSCA reform or giving new authority to EPA. For that to happen, the Senate has to do the heavy lifting,” Duvall said.

“The best case is that the Senate, after due deliberation, passes it by a large margin including a large number of Republicans. Strong Republican support will be important if the House is going to accept” a bill giving EPA increased authority, Duvall said.

Both Charles Auer, who oversaw TSCA implementation for more than three decades before retiring in 2009 as director of EPA's Office of Pollution Prevention and Toxics, and Steve Owens, former assistant EPA administrator for chemical safety and pollution prevention, have described the Chemical Safety Improvement Act as a “workable” law that provides EPA the mandate and sufficient authority to obtain needed information to evaluate the safety of chemicals to which consumers, communities, and workers can be exposed.

Some “downstream” trade associations that represent companies that use chemicals also are joining in support of S. 1009.

“The [Chemical Safety Improvement Act] is needed to bring the capabilities of a national chemical safety program in line with the advances in current science,” Aaron Lowe, vice president of government affairs for the Automotive Aftermarket Industry Association, said in a May 28 statement.

“The automotive aftermarket looks forward to working with senators from both sides of the aisle to create a new program that protects consumers and does not unduly burden businesses,” Lowe said.

One Clear Objection

But states have been silent regarding S. 1009, and consumer, labor, and environmental health advocates generally have offered only cautious support.

The Environmental Working Group has been more publicly critical than other advocacy groups. “As written, [the bill] will fall far short of improving the existing law; it may even make things worse, particularly in the way it would chill states from pursuing their own regulations to ensure that chemicals are safe,” the group said in a May 30 statement.

Owens told BNA he does not know how states will react to provisions in S. 1009 that would preempt state authority to regulate chemicals unless they secure waivers.

Some states are likely to object to preemptions, he said, without naming them.

As a former president of Environmental Council of the States (ECOS), however, Owens told BNA that most states are willing to accept federal preemption, provided EPA is given sufficient authority to oversee the safety of chemicals.

“It's not unanimous, but there's a general feeling that it's a trade-off that's worthwhile,” Owens said.

Interagency Data Needs

Auer told BNA the bill would address testing needs of other federal agencies that do not have the authority to require chemical toxicity or other data.

S. 1009 would retain the Interagency Testing Committee authorized by TSCA, through which federal agencies can work with EPA to obtain data, and it clearly authorizes EPA to require information if needed by other agencies, Auer said. “This bill is actually clearer, better in that regard [than TSCA],” Auer said.

Allmond, Auer, Owens, and others expressed respect and appreciation for the efforts Lautenberg and Vitter made to obtain perspectives from divergent parties interested in TSCA reform prior to introducing their legislation.

“What struck me in reading the bill is that … it really does strive to reach a middle ground. … How this plays out remains to be seen,” Owens said. “I'm pretty optimistic right now.”

Several law firms have posted analyses of the Chemical Safety Improvement Act. An in-depth review and analysis by Bergeson & Campbell is available at http://tinyurl.com/loubcn7.

An analysis by Beveridge & Diamond is available at http://www.bdlaw.com/news-1478.html.

A comparison between TSCA and the Lautenberg/Vitter bill posted by Keller and Heckman is available at http://www.khlaw.com/Files/17445_Comparison%20Chart.pdf.

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