Hearing lays path for TSCA reform, but Boxer's role is unclear

After a lengthy hearing that touched on several potential trouble spots for a bipartisan reform of the nation's broken chemicals management system, all sides say there's hope for a compromise.

But just who will be in charge of that compromise remains to be seen.

Environment and Public Works ranking member and key reform advocate David Vitter (R-La.) said at yesterday's hearing that he was already at work on updates to the bill in an effort to move a compromise forward.

"We're not only ready to start; we started over a month ago and are eager to continue," Vitter said in closing the hearing.

Earlier during the hearing, Vitter and EPW Chairman Barbara Boxer (D-Calif.) even had a dispute over who would be moving forward on the manager's amendment, a phrase Vitter used that caught Boxer's attention. Vitter clarified that he was "working on proposed revisions to the bill to address all of these concerns."


Boxer responded, "I just wanted to make it clear that I would be working the manager's amendment with you, unless you don't like it and I can get somebody else who does."

The two had a number of potentially tense interactions, highlighted by the moment when Boxer held up a Curious George doll -- used as a prop to show off toys that contained harmful substances -- to her face and squeaked "No pre-emption please, sir!"

The hearing largely centered on the "Chemical Security Improvement Act" (S. 1009) from Vitter and the late Sen. Frank Lautenberg (D-N.J.). The bill is the latest -- and in many eyes, the best -- chance at reforming the 1976 Toxic Substances Control Act, the only major environmental statute to not have received a significant update.

While the bill has 25 bipartisan co-sponsors, it has caught some flak from environmental and public health groups and some states over concerns that it would overstep state laws and does not offer enough protection for vulnerable populations.

Vitter, speaking at the end of the six-hour hearing, said that he saw a way to resolve most, if not all, of the issues raised by both sides and get a "solid bipartisan bill that can not only be talked about at a hearing, but that can actually be passed into law in a divided Congress."

And Sen. Tom Udall (D-N.M.), who has emerged as the key Democrat on the bill, said in a statement that the Chemical Security Improvement Act, or CSIA, represents a "rare commodity -- a bipartisan agreement on a bill that will make a real difference for American families."

"Let's seize this moment and do the right thing," he added.

Meanwhile, Boxer, who has put her support behind the more liberal "Safe Chemicals Act" (S. 696), also vowed to work on the bill, saying she would meet with Vitter and Udall. In a statement, Boxer listed a series of objectives that must be met, including setting time frames for EPA to act on chemicals and ensuring that states have the ability to act.

Boxer also criticized Vitter's minority witnesses, noting that they had ties, either directly or through association with law firms that had represented them, to the chemical industry that would be regulated by the bill. Vitter responded that the industry groups were players in the process, as well, and should be heard.

Boxer had previously vowed to craft her own bill combining elements of the bipartisan bill with the Safe Chemicals Act, even though some have advocated using CSIA as the base for any reform. And some Democrats who had not signed as co-sponsors to CSIA, including Sens. Ben Cardin of Maryland and Tom Carper of Delaware, signaled that it could be a good framework.

After the hearing, outside sources involved in the process said they were more confident that Boxer would move ahead with reforming CSIA, based on her comments.

"One question mark has always been: Will she work on the bill, or will [Vitter and Udall] have to do the work and present it to her?" one public health official said. "She said she's going to work with them on the bill, so that raises the prospect of a much more normal, straightforward process."

Key disputes that need to be addressed

Despite the agreement on a need to act, there are still several thorny and unresolved disputes left on the table. Chief among them is concern that the bill would overstep state laws and make it difficult for states to enact their own chemical restrictions.

Robin Greenwald, an attorney with Weitz & Luxenberg, said the bill would take "unprecedented" action in pre-empting state laws.

Earlier, a state witness from California said it "cripple the states' power to protect our environment and the health and welfare of our citizens" (Greenwire, July 31).

But others disputed those claims. Mark Duvall, a Beveridge & Diamond attorney with experience on TSCA, testified that CSIA "significantly expands the roles of states in EPA's decision-making under TSCA."

"Their role would not be greater under the Safe Chemicals Act," Duvall said. "In contrast, the CSIA makes states important contributors to EPA's implementation of TSCA."

Boxer has made it clear that protection of state authority -- especially Calfornia's landmark Proposition 65 -- must be in any final deal, and Vitter has vowed to find a workable solution. That could range from allowing states to move forward on chemicals until they reach a later point in EPA's review process (under CSIA, the federal government would pre-empt state law at the prioritization stage before testing and enforcement) or by crafting a state-federal partnership model.

Another change some advocates are hoping for is more specific language to protect vulnerable populations, such as children or the elderly. Supporters of CSIA say there is language requiring consideration of the vulnerability of exposed subpopulations in a safety assessment, although critics have said that protection is absent from the risk assessment section.

But legislators and witnesses agreed that there appeared to be a workable solution, and Vitter said it was not the intent of the bill to exclude vulnerable groups.

Boxer also said there will need to be more specific time frames for EPA to act on dangerous chemicals, a frequent criticism of CSIA, which many say lacks firm deadlines or requirements for the agency.

In the end, though, observers said it was possible for those issues to be ironed out to reach a compromise and sustain the unprecedented momentum for the chemical reform effort.

"This is now officially a thing that can get done," said Andy Igrejas of Safer Chemicals, Healthy Families, a coalition that includes several of the groups that testified. "Whatever difficulties there are on the committee, between the offices, there's an interest in doing this. The issues have been aired, and now this can get done."

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