Udall, Vitter reach deal on revamped TSCA bill, draw 3 key sponsors

By Sam Pearson | 04/28/2015 07:19 AM EDT

Lawmakers announced an agreement late yesterday on a series of changes to a bipartisan chemical safety bill that won the support of three additional Democratic senators who sit on the committee set to vote on the bill today.

Lawmakers announced an agreement late yesterday on a series of changes to a bipartisan chemical safety bill that won the support of three additional Democratic senators who sit on the committee set to vote on the bill today.

Sens. Sheldon Whitehouse (D-R.I.), Jeff Merkley (D-Ore.) and Cory Booker (D-N.J.) confirmed that they now support S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act." The bill from Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) will be marked up this morning by the Senate Environment and Public Works Committee.

The shift came after negotiators agreed to a series of changes to the bill in response to previous criticisms by the lawmakers. And it came despite a continued campaign against the legislation by committee ranking member Barbara Boxer (D-Calif.) and Sen. Ed Markey (D-Mass.), who have introduced an alternative bill.


Boxer last week said she had asked Booker, Merkley and Whitehouse to negotiate over the bill. A Boxer aide declined to say by publication time whether the senator believes the changes are sufficient to protect the public health. A Markey spokeswoman characterized the updated bill as "considerable progress" but stopped short of saying the senator would support it.

The changes have been a key goal of Udall, who has faced opposition from some colleagues and from many environmental groups over the bill this year (see related story).

With the changes, the bill now would:

  • Prevent new state chemical restrictions when U.S. EPA defines the scope of the uses of a chemical, rather than when the agency designates the chemical as a high priority. If EPA misses its deadline to make a safety determination, states would automatically receive a waiver that would allow state law to remain in effect. EPA would be required to approve the waiver if it doesn’t violate federal law or unduly burden interstate commerce and is based on peer-reviewed science. The waiver would be automatically approved if EPA does not take action within 90 days. That decision could be challenged, which would result in the waiver being suspended, but it would come back into force if the matter is not resolved after another 90 days.
  • Allow states to keep existing chemical bans put in place before Aug. 1, 2015, rather than Jan. 1, 2015, meaning that state lawmakers could enact new legislation this year that would not be affected by changes in federal law.
  • Specify that the rules would not affect states’ air and water laws and clarify that states would not be barred at any point from requiring chemical disclosure laws.
  • Allow states to enforce laws identical to federal law — a practice known as co-enforcement — but specify that state and federal authorities can’t collect penalties from violators for the same offense.
  • Make it easier for EPA to designate a chemical as a high priority by requiring that these chemicals be based on "significant" hazard and "significant" exposure, not "high" hazard and "widespread" exposure.
  • Subject chemicals designated as low priorities to a 90-day public comment period, and allow any party to challenge the decision within 60 days.
  • Require EPA to choose persistent, bioaccumulative and toxic (PBT) chemicals first when making mandated selections for review from its work plan chemicals list, which are chemicals previously identified by the agency as in need of further attention, and to reduce exposure "to the maximum extent practicable." However, the bill would not create a fast track for banning PBT chemicals, as Boxer and Markey had called for, but would allow EPA to incorporate existing information from other agencies or the National Academies into the assessments.
  • Allow EPA, if companies request the assessment of a chemical, not to count it against EPA’s quota of assessments for the year. The requested assessments — unlike other chemical reviews — would not affect state laws until a final regulatory action is taken. There also would be limits on how many of these assessments could be performed relative to other assessments.

The changes also would remove a controversial section from the bill on product imports that opponents said would make it harder for EPA to restrict imports of harmful chemicals.

In a statement, Udall said the agreement was proof that "momentum is building for common-sense legislation to finally ensure our kids are safe from dangerous chemicals. I am very optimistic that we can pass this bill out of committee and bring it to the Senate floor and that support will keep growing in the coming days and weeks."

Whitehouse said the deal "will help give American families peace of mind that everyday products we rely on are safe."

Booker said in a statement the agreement had produced "a compromise and is not perfect." However, he added, "Sen. Frank Lautenberg made strengthening federal laws to better protect Americans from toxic substances and pollutants one of his top priorities, working tirelessly to find common ground across party lines to advance important reforms of the Toxic Substances Control Act. Reaching a bipartisan agreement to improve the legislation bearing his name is a fitting way to honor this great New Jerseyan’s legacy."

Richard Denison, a senior scientist at the Environmental Defense Fund, praised the compromise.

"With the agreed-upon changes, the revised bill represents a strong, bipartisan compromise that fixes the major flaws in current law," he said in a statement.

In a statement provided last night to E&E Daily, Markey spokeswoman Giselle Barry said, "There has been considerable progress in making the provisions in the bill that would have completely handcuffed states from taking action on toxic chemicals in their communities more workable, and provisions Senator Markey pushed for to remove some of the legal arguments used by industry to overturn EPA’s asbestos ban have been included in this package, as well. Senator Markey is committed to continuing to work for a strong chemical safety bill that truly does protect families in Massachusetts and across the country."