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By Pat Rizzuto
Nov. 22 --Negotiations on legislation that would modernize the Toxic Substances Control Act have hit a snag, according to parties familiar with the negotiations.
Whether the negotiations can get past the snag or whether the standoff will turn into an impasse is yet to be determined, some representatives of industry and environmental groups told Bloomberg BNA Nov. 21.
Other industry officials and a legislative aide told Bloomberg BNA that, while certain aspects of TSCA reform legislation--such as the extent to which it would preempt state regulations--remain topics of debate, they are hopeful that interested parties can negotiate a bill that would receive broad support.
None of the individuals and organizations Bloomberg BNA spoke with wanted their names or organizations made public due to the sensitive stage of the negotiations and a desire not to frustrate the possible completion of a TSCA-reform bill.
However, Richard Denison, a senior scientist with the Environmental Defense Fund, e-mailed Bloomberg BNA a statement that said the EDF agrees with many environmental advocates that there are significant problems in the Senate bill, S. 1009.
That bill was the subject of a Nov. 13 House Energy and Commerce subcommittee hearing.
The EDF maintains the problems can be resolved, Denison said. “We are doing everything we can to achieve a strong, successful outcome,” he said.
Notwithstanding the EDF's desire to improve public health protections offered by S. 1009, the group's support for the legislation has resulted in its withdrawal from the Safer Chemicals Healthy Family coalition, a spokesman for the coalition confirmed. He declined to comment further on the split.
The EDF helped found the coalition, which represents about 450 public health advocacy, consumer, environmental, labor, nursing and other organizations. The coalition's members include the American Nurses Association, Center for International Environmental Law, Health Care Without Harm and the Sierra Club.
The coalition provided Bloomberg BNA with a recent summary of its positions on the Chemical Safety Improvement Act.
According to the coalition's summary, the Chemical Safety Improvement Act should not move unless the bill is revised to ensure that the Environmental Protection Agency can manage chemical risks through regulations, including bans of substances, without having to prove its risk management approach is the least burdensome.
TSCA has failed to provide public health protections envisioned when the law was passed in 1976, because it required EPA not only to choose management measures commensurate with the level of risk, but also to demonstrate it had chosen the least burdensome of those measures, Andy Igrejas, the coalition's director, told the Energy and Commerce Subcommittee on Environment and the Economy during the Nov. 13 hearing.
The EPA largely abandoned its efforts to restrict chemicals in commerce after 1991 when the Fifth Circuit overturned a ban on asbestos, he said.
The Chemical Safety Improvement Act does not use the term “least burdensome,” Igrejas testified, “but because of the way it is drafted, the cost-benefit considerations are not fully separated, and the least burdensome requirement is effectively retained for bans and phaseouts.”
Jim Jones, assistant EPA administrator for chemical safety and pollution prevention, urged legislators during that hearing to be sure a TSCA-modernization bill would be clear about the extent of analyses that the EPA would have to conduct before it could issue restrict or ban chemicals.
The language in S. 1009 is being interpreted quite differently by various parties tracking the bill, Jones said.
Staff for Sen. Tom Udall (D-N.M.), who has championed S. 1009 since the death of its Democratic co-sponsor Sen. Frank Lautenberg (D-N.J.), told Bloomberg BNA negotiations on TSCA reform are continuing. Staff referred Bloomberg BNA to Udall's testimony before the House subcommittee.
Udall said S. 1009, as introduced, was not a perfect bill but that he was committed to making sure it would accomplish several goals, specifically that it would:
• give the EPA authorities it needs to protect citizens and review the chemicals in commerce;
• protect private rights of action for citizens in toxic tort cases; and
• protect abilities of states to safeguard their citizens.
Anne Womack Kolton, vice president of communications at the American Chemistry Council, told Bloomberg BNA the council remains hopeful for enactment of S. 1009.
According to Kolton and other industry officials, a key sticking point in the negotiations on S. 1009 remains preemption. During a previous hearing in September, state officials told the same House subcommittee that they must have authority to regulate chemicals to protect state residents and the environment .
The issue of preemption has several facets, some of which are outlined by Democratic staff for the Environment and the Economy Subcommittee in a background memo prepared for the Nov. 13 hearing.
“S. 1009 would remove the authority states currently have under TSCA to go beyond federal regulation and ban the use of a chemical substance within the borders of the state,” the memo said.
“The bill would also preempt state authority to address the risks posed by chemicals that have never undergone a safety assessment because EPA has labeled them a low priority,” the Democratic staff memo said.
The Chemical Safety Improvement Act would require the EPA to evaluate all chemicals in commerce and designate compounds as either high-priority or low-priority substances.
That designation couldn't be challenged in court, because S. 1009 states that it would not constitute a final agency action.
Jones said the agency's determination of a chemical as a low-priority constitutes a final agency action.
“As matter of good government, I think it is important to allow people who disagree with a final agency action to be able to challenge it,” Jones said.
To contact the reporter on this story: Pat Rizzuto in Washington firstname.lastname@example.org
To contact the editor responsible for this story: Larry Pearl at email@example.com
Safer Chemicals Health Families position paper is available at http://op.bna.com/env.nsf/r?Open=rlen-9dntxf.
Democratic staff concerns about S. 1009 are available in its memo at http://op.bna.com/env.nsf/r?Open=rlen-9dnty2.
A webcast of the hearing is available at http://www.ustream.tv/recorded/40735860.
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