Back and forth on bipartisan reform bill continues ahead of today's 'mega-hearing'

Despite criticism from some Democrats and public health groups, backers of a bipartisan bill to reform the Toxic Substances Control Act say their language represents the best chance to update the nation's outdated chemical management system.

But how that bill moves forward will depend largely on a lengthy hearing today that will evaluate it and other legislative fixes to TSCA.

"If this legislation falls apart or there is a huge bite that is unnecessary where there really is an opportunity to do something good here, [it] would set back the chances of TSCA reform a long, long time," said a Senate aide familiar with the legislation.

The Environment and Public Works Committee will meet at 9:30 a.m. this morning for a hearing on protecting the public from toxic chemicals with a staggering 19 witnesses spread over three panels. Chief on the agenda will be the bipartisan "Chemical Safety Improvement Act" (S. 1009), crafted by EPW Committee ranking member David Vitter (R-La.) and the late Sen. Frank Lautenberg (D-N.J.).

It's the latest and most high-profile attempt to reform the 1976 TSCA, the nation's only environmental statute not to have received a significant congressional update. Current law leaves EPA with little authority to test new chemicals in commerce or restrict potentially harmful ones.


The Chemical Safety Improvement Act would require that chemicals be screened before entering commerce, giving EPA more authority to take action against potentially harmful chemicals, and would mandate that high-priority chemicals require additional safety screenings.

Although the Vitter-Lautenberg bill has 25 co-sponsors and is seen by some as the best chance for moving TSCA reform, it lacks support from Chairwoman Barbara Boxer (D-Calif.) and many public health and green groups. The bill would not go far enough to give U.S. EPA authority to restrict toxic substances and might bar states from going further than the slow federal government, they say.

But Senate supporters -- and even some groups not thrilled with the content -- say it might be the best base to work from. Sen. Tom Udall (D-N.M.), who has emerged as a Democratic backer after Lautenberg's death, said in a statement that it is a "near-universal opinion" that TSCA is "deeply flawed and must be updated."

"Enacting major environmental laws is a very tall order, and we are closer than we've been in decades," Udall said. "We have begun the process of thinking through creative solutions to address some of these issues and are optimistic that there is a path forward."

Udall added that he and Vitter would work with Boxer and others to "improve the bipartisan bill before us" and have a new version after the August recess.

Also on the table, however, is the "Safe Chemicals Act" (S. 696) from Lautenberg, which cleared the EPW Committee last year but failed to move on the Senate floor. It also is more stringent than the Chemical Safety Improvement Act but lacks any GOP support and does not have the approval of industry.

The Chemical Safety Improvement Act, a Senate aide said, may not go as far as the Safe Chemicals Act, but it would "bump the law from zero to a modest amount."

The witnesses at today's hearing hold a wide variety of opinions on the Chemical Safety Improvement Act. On one side is Ken Cook, president of the Environmental Working Group, who has deemed the bill an "unacceptably weak response to the chemical exposure problems American families face every day." Also appearing will be representatives from Breast Cancer Fund, the Center for Environmental Health, the Asbestos Disease Awareness Organization and other groups that have signaled some opposition to the bill.

On the other side are a number of supporters, including former Obama EPA Office of Chemical Safety and Pollution Prevention head Steve Owens, who said the bill would "help bring our nation's chemical management program into the 21st century." There will also be representatives from DuPont and the Toy Industry Association, among the industry groups that have backed the bill.

But at least some measure of compromise is expected to be on the table. Nancy Buermeyer, senior policy strategist for the Breast Cancer Fund, said that even though the Chemical Safety Improvement Act has many problems with protecting vulnerable populations, it does provide a "starting point."

"We should try to amend that bill, but we should not limit ourselves to the text of that bill," said Buermeyer, who will testify today. "While bipartisanship is important, we don't think a bill should pass that doesn't meet the core value of public health."

Key issues on the table

That still leaves a number of pieces of the bill up for debate at today's hearing. Among the biggest criticisms of the bill has been its language that opponents say would make it more difficult for states to regulate chemicals.

Opponents have charged that a proposed waiver system for states to step ahead of the federal government would be cumbersome and insufficient and could end up pre-empting state-level laws like California's Proposition 65, which requires businesses to label products with significant amounts of certain chemicals.

In a letter sent yesterday, attorneys general from nine states, including California, warned that "reforms that come at the cost of sweeping preemption of state authority -- as in S. 1009 -- do not advance the protection of our citizens' health and the environment."

"Our citizens are better served when states are allowed to complement the federal government's efforts," they wrote. "Innovative state laws often result in better regulation and more safeguards, particularly for vulnerable subpopulations such as children and pregnant women. State initiatives have served as templates for national standards."

Boxer has also warned that the pre-emption issue is a deal breaker for her and that any TSCA reform bill must protect state laws to gain her support.

But the bill's backers say that the legislation does not go as far as some groups have said and that existing state restrictions on chemicals would remain until EPA has made a final safety determination. New state prohibitions or restrictions, however, would be overridden when EPA makes a prioritization decision, signaling whether a substance is of high or low priority for regulation.

States could still apply for waivers for any restrictions, they added.

That, said a Senate aide, would provide more certainty for the industry to not have to deal with a patchwork of regulations and would help states that haven't implemented any screening or restriction programs not "be left in the dark" by bringing everyone to the same level.

Also on the docket will be a discussion of how the bill protects vulnerable populations, such as children, the elderly or disenfranchised communities. On a press call yesterday, Cecil Corbin-Mark, deputy director of We Act for Environmental Justice, said it is important to highlight "contaminated communities" near chemical facilities, among other groups.

But supporters say the bill specifically contains language requiring consideration of the vulnerability of exposed subpopulations in a safety assessment. The bill would also require EPA to consider populations with higher than average exposures when assessing chemical safety and could leave the door open for consideration of "hot spots."

Still, opponents say the legislation should do more to explicitly require EPA to evaluate the impact of chemicals on vulnerable populations.

Green groups have also charged that the bill sets no minimum data set or baseline for research, leaving EPA without a firm basis by which to evaluate chemicals. That, they argue, would make it difficult for EPA to identify high-priority substances.

Likewise, groups say that there is too much room for chemical companies to claim confidential business information exemptions to shield chemical identities.

But aides working on the bill said the confidential business information claim language does require more reporting than the current TSCA and leaves EPA the authority to require any data it needs for a safety assessment.

Opponents have also charged that the bill does not contain firm deadlines, which would leave EPA with open-ended authority. Aides admit that the lack of deadlines is a "shortcoming" and say they are working with the industry and stakeholders to determine how to best put deadlines in the bill.

Ultimately, Senate aides say they're open to hearing any issues with the bill, especially if legislators that have not signed on ask "constructive questions that indicate that they'll be willing to work with us."

Witness list revealed

The witness list for the "mega-hearing" was unveiled yesterday afternoon and portends a lengthy discussion. The hearing is expected to open with a statement from Sen. Joe Manchin (D-W.Va.), who is a co-sponsor of the bill and helped work to craft the bipartisan compromise.

The first panel will feature three state witnesses: Michael Troncoso, senior counsel to the California attorney general; Ken Zarker, manager of the pollution prevention and regulatory assistance section for Washington state's Department of Ecology; and Michael Dorsey, chief of homeland security and emergency response for the West Virginia Department of Environmental Protection.

The second panel will feature a variety of chemical and health policy experts, with Owens, Beveridge & Diamond principal Mark Duvall and DuPont Chief Sustainability Officer Linda Fisher testifying as minority witnesses. Also appearing will be Cook; Natural Resources Defense Council senior attorney Daniel Rosenberg; University of Texas, Austin, law professor Thomas McGarity; Asbestos Disease Awareness Organization Executive Director Linda Reinstein; and Robin Greenwald of Weitz & Luxenberg.

The third panel will focus on vulnerable populations and life stages. Testifying will be Buermeyer, Corbin-Mark, Dignity Health Vice President Susan Vickers, Mossville Environmental Action Now President Dorothy Felix and Center for Environmental Health Eastern States Director Ansje Miller. Also appearing will be Toy Industry Association Vice President Andrew Hackman, Alston & Bird environmental attorney Maureen Gorsen and Jonathan Borak, a professor of epidemiology and public health at the Yale University School of Medicine.

Reporter Jessica Estepa contributed.

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