Industry groups once derided former Sen. Frank Lautenberg’s (D-N.J.) perennial proposals to tighten the nation’s regulation of toxic chemicals, but now they are poised to invoke the late senator’s legacy as they push for their preferred reform plan this month with the introduction of a reform bill expected in the next day or two, just ahead of a Senate hearing expected next week.
The chemical industry and groups that support a plan taking shape to update the Toxic Substances Control Act of 1976 have spent months downplaying the differences that remain between an industry-backed bill and language preferred by Environment and Public Works Committee ranking member Barbara Boxer (D-Calif.) and many environmental groups. Though Lautenberg was regarded as a liberal legislator, the bill released nearly two years ago that stemmed from talks between him and Sen. David Vitter (R-La.) is still looking for the support of most environmental groups.
Meanwhile, although Sen. Tom Udall (D-N.M.) has taken Lautenberg’s place at the negotiating table and has secured changes from the original "Chemical Safety Improvement Act" to fix what critics said were loopholes that could lead to lax regulation and bar states from taking action on their own, the language hasn’t won the support of most of the public health community and key Democrats.
But the plan to invoke Lautenberg’s legacy — including by calling his widow, Bonnie Englebardt Lautenberg, to deliver a statement before the Environment and Public Works Committee in favor of the proposal and naming the bill the "Frank R. Lautenberg Chemical Safety for the 21st Century Act" — threatens to inflame divisions between Boxer and other Democrats.
A committee aide said the bill was being reviewed, but "it is already clear that many very serious concerns remain," including restrictions the bill would place on future state regulations and language that would not ensure immediate action on the most harmful substances, like asbestos.
The bill "eviscerates state law and at the same time would not make a dent even in the thousand chemicals we already know present a serious threat," the committee aide said.
Despite the effort to reach a bipartisan consensus, the bill is set to be introduced without the support of most environmental and public health groups, many of which released a letter yesterday opposing the proposal in its current form.
The bill "continues to have serious flaws that undermine protection of public health," said the letter, adding, "and we continue to be ready to work with senators to get those changes." The letter was signed by representatives of Safer Chemicals, Healthy Families; the Natural Resources Defense Council; the United Steelworkers; the League of Conservation Voters; and other groups.
The most significant problems include restricting state regulations for chemicals designated "high priority" for which EPA action is planned but not completed, barring co-enforcement of federal regulations by states and allowing EPA to designate chemicals as "low priority" without testing them. The proposed legislation also makes it more difficult for EPA to restrict the use of a chemical found to be unsafe from specific products by creating additional administrative steps that could prolong the process, the groups said.
Despite the criticism, the chemical industry has defended the result of the negotiations and said the proposal is reasonable. And Michael Walls, the American Chemistry Council’s vice president of regulatory and technical affairs, told an industry gathering last week that lawmakers were "on the cusp of bringing our country’s nearly 40-year-old chemicals management law into the 21st century" (E&E Daily, March 4). The group has also expressed frustration with Boxer’s tactics in the past.
"A lot of people are playing politics with this issue, and a lot of people are not looking to compromise or get something done," a Senate aide said. "The serious folks are recognizing that a lot of work is being done, and even folks who aren’t supportive in the end, I think, will be much more supportive of the process."
‘A tough nut’
Updating the nearly 40-year-old TSCA law was a top priority for Lautenberg, who pushed hard to see it through, even at the end of his life, said Ben Dunham, who was Lautenberg’s legislative director at the time and is now a director at McKenna Long & Aldridge.
Lautenberg and Vitter’s partnership in the Senate was highly unusual. For years, Lautenberg had introduced different versions of the bill that were more restrictive and were opposed by the industry and Republicans. At hearings held in 2009 and 2010 when Democrats controlled the Senate, some GOP senators asserted that EPA officials weren’t using existing authorities under TSCA, arguing that they didn’t need new regulatory tools.
Lautenberg took on other public health fights with the tobacco and alcoholic beverages industries, the National Rifle Association and big chemical companies and won significant victories, pushing for laws to disclose toxic chemical releases, ban smoking on airplanes, ban people convicted of domestic violence offenses from owning guns and crack down on drunk driving. His fights amassed him a record of voting liberal 94 percent of the time, according to Americans for Democratic Action.
To fight the smoking ban, airlines and cigarette companies worked together to mobilize supporters, such as by leaving cards on airplane seat backs urging opposition to the changes. Some lawmakers said Lautenberg’s push was too aggressive, preferring instead to back research on whether it was possible to modify aircraft to better ventilate the smoke. When the measure was attached as an amendment to a transportation appropriations bill in 1989, Lautenberg said the public health savings outweighed whatever economic harm it could cause tobacco farmers.
"Grow soybeans or something else," Lautenberg said, according to the University of California, San Francisco’s library of tobacco records. In another interview, he lamented that the industry "want[ed] to go to the mat on every issue."
When Congress approved the new drinking law restrictions, some states held out for years from adjusting drinking ages, even though the law Lautenberg pushed for penalized them by taking their federal highway funding.
"He was a tough nut, let’s put it that way," said Brigid Harrison, a political science professor at Montclair State University. "When you think of him, certainly he was able to build coalitions in Congress, but he was not someone that was known as the great compromiser. Coming from a state like New Jersey, he was virtually assured re-election for most years, and he was a progressive legislator, so it wasn’t as if he were coming from a swing state where he needed to compromise his beliefs and his policies."
But it wasn’t a winning approach when it came to tightening the system for managing chemicals, Dunham said.
In 2009, Lautenberg asked then-EPA Administrator Lisa Jackson at a Senate committee hearing what should be done about persistent bioaccumulative toxins, or PBTs. Lautenberg also asked if "there are non-PBT chemicals — substances like asbestos, formaldehyde or [hexavalent chromium] — for which we know enough about hazard and exposure so that EPA should move to risk management without having to first conduct additional risk assessment," though he ultimately dropped those provisions from the "Chemical Safety Improvement Act" — a sticking point for Democrats like Boxer.
‘We’re going to have to compromise’
Though the "Safe Chemicals Act" cleared the Environment and Public Works Committee in 2012 with Democrats in control, Lautenberg gave up trying to seek a Senate floor vote when he realized the bill was set to lose big, Dunham said.
"It was at that point that we realized that we’re going to have to compromise," Dunham said. "[Lautenberg] said to us at that point, ‘We’re going to have to figure out a way to get this done, and we’re going to have to do it with Republicans.’"
The progress made since then has shown that Lautenberg "would be proud of where we are," Dunham said.
Today, chemical industry groups invoke Lautenberg’s support as a sign that updating TSCA would benefit the nation, not just their companies. But Lautenberg and the chemical industry had their disagreements. Like Lautenberg’s past opponents, the industry didn’t take lightly to the "Safe Chemicals Act," which would establish the kind of strict safety standards favored by Democrats like Boxer. Cal Dooley, the American Chemistry Council president, called the "Safe Chemicals Act" "extreme" (E&E Daily, June 19, 2012).
"It’s time to break away from the chemical industry lobbyists and listen to concerned parents, pediatricians and nurses who are demanding change," Lautenberg said upon introducing the bill in April 2013, for what would be the final time.
The industry’s enthusiasm hasn’t extended to other Launtenberg accomplishments. Efforts to strengthen Lautenberg’s other chemical safety milestones — like adding new chemicals to the Toxics Release Inventory, reinstating the Superfund cleanup tax and putting new security requirements in place at chemical facilities — have all stalled for decades amid opposition from the industry.
The pending Senate bill wouldn’t even be the only one named for Lautenberg this session. Rep. Sheila Jackson Lee (D-Texas) beat Udall and Vitter to it with H.R. 54, the "Frank Lautenberg Memorial Secure Chemical Facilities Act," to require chemical facilities to use inherently safer technologies, a past Lautenberg proposal opposed by the industry that is not expected to advance this year.
The EPW Committee hearing — expected for March 18 — could provide an opportunity for Englebardt Lautenberg to weigh in, after some reports said she was rebuffed in 2013 by Senate Democrats.
The late senator’s death in 2013 created friction between her and some Senate Democrats, according to media reports, which said Englebardt Lautenberg had lobbied senators to take action on her late husband’s chemical bill. Boxer has previously told reporters her relationship with Lautenberg’s widow was a private matter, CQ Roll Call reported in 2013. Englebardt Lautenberg married the senator in 2004, when he was 81.
Lawmakers named the bill after consulting with Englebardt Lautenberg, spokeswomen for Udall and Inhofe said. Committee staff say she wasn’t asked to appear at the opening push for the bill but wants to push for what was Lautenberg’s last political goal.
"Sen. Lautenberg long championed this issue and recognized that protecting the health and safety of American families and our environment is a priority shared by both parties," Inhofe said in a statement. "He moved past the partisanship that too frequently consumes the Senate and Congress as a whole when he put aside his previous TSCA reform legislation and introduced the bipartisan legislation that was not only the framework for this current bill, but has been since strengthened through Senator Udall’s work with Senator Vitter."
The path to 60 votes
It’s not clear which additional Democrats will support the Udall-Vitter bill, which will need at least six Democrats to break a filibuster in the chamber.
Sens. Kirsten Gillibrand and Charles Schumer of New York, Robert Menendez of New Jersey, Dick Durbin of Illinois and Udall of New Mexico were the only holdover Democrats who co-sponsored the "Safe Chemicals Act" and stayed on for the "Chemical Safety Improvement Act."
A spokesman for Durbin said the senator had not seen the new legislative language. Representatives for Gillibrand, Schumer and Menendez didn’t respond to requests for comment.
Udall and proponents of the bill are expected to push heavily for filibuster-proof support.
"For the first time, we have a bill that can break the logjam and pass," Udall said in a statement. "And not only will our bill significantly improve existing law — but it is the best opportunity we are likely to ever have for another 40 years. We are constantly working to improve it."
It’s an argument some environmental groups understand.
"Given this Congress, I don’t think we’re going to be moving anything for quite a while" if the bill fails, said Jeff Tittel, director of the Sierra Club’s New Jersey chapter.
Others raised the prospect that chemical management legislation could go the way of failed climate change bills if lawmakers prove unable to act. If lawmakers do nothing, "we may be stuck with this bad law for another decade or two," said Richard Denison, a senior scientist at the Environmental Defense Fund.