TSCA Reform:  Senate Committee Holds Markup and Passes Bipartisan Substitute Bill

On April 28, 2015, the Senate Committee on Environment and Public Works held a hearing to consider several bills, including the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697). Prior to the hearing, on April 27, 2015, Senators Tom Udall (D-NM), Sheldon Whitehouse (D-RI), Jeff Merkley (D-OR), and Cory Booker (D-NJ) announced a bipartisan compromise agreement intended to strengthen protections under S. 697, while expanding states’ authority. During the hearing, Senator David Vitter (R-LA) introduced the compromise bill as a substitute through a manager’s amendment, which was passed by the Committee and favorably reported to the Senate Floor. Vitter issued a press release announcing passage of the substitute bill and highlighting improvements. The substitute:

• Strikes a compromise on one of the most controversial issues, and that is the high priority preemption. The amendment balances the need for businesses to maintain certainty while allowing states to play an important role in protecting public health and the environment;
   
• Allows for state co-enforcement of regulations at a state level for regulations that are consistent with the current Toxic Substances Control Act (TSCA);
   
• Requires that, for the purposes of TSCA submissions to the U.S. Environmental Protection Agency (EPA), industry look at available alternatives to animal testing;
   
• Provides clarification that state clean air and water laws are not preempted; and
   
• Includes other clarifying changes regarding confidential business information (CBI), articles, and other provisions.

The substitute bill, summary of changes, and a comparison of the substitute bill to S. 697 as introduced are available on our website. A quick summary and analysis of the substitute bill is available here. A detailed and consolidated analysis of the substitute bill will be forthcoming.

Democrats offered several amendments, all of which failed to pass:

• Senator Kirsten Gillibrand (D-NY) offered substitute preemption language, taken from the discussion draft of the TSCA Modernization Act of 2015, which was released by House Energy and Commerce Subcommittee on Environment and the Economy Chair John Shimkus (R-IL) on April 7, 2015, that would preserve the right of states to act in the absence of a final EPA regulation on a chemical. Vitter stated that the proposed language would alter the fundamental compromise in the substitute bill, and could prompt states to rush to take action before EPA. Senator Barbara Boxer (D-CA), Ranking Member of the Committee, colorfully referred to the “death zone” — the period during which states would be preempted from taking action on any chemical designated by EPA as “high priority” and for which it has begun a safety review — and called for passage of the amendment. Whitehouse, who claimed credit for coining the phrase death zone, stated that the death zone is gone in the substitute bill.
   
• Boxer offered an amendment that would ban asbestos. Vitter opposed the amendment, stating that the purpose of the bill is to reform TSCA, not select and legislate individual chemicals. Senator Edward Markey (D-MA) described asbestos as “the worst of the worst,” but stated that the substitute bill would still require EPA to go through a lengthy review process to ban asbestos, despite its known dangers.
   
• After failure of the amendment that would ban asbestos specifically, Markey offered an amendment that would provide an alternative way of dealing with asbestos without naming asbestos. According to Markey, the amendment would provide EPA with discretionary authority to prioritize and accelerate the review of chemicals already determined to be carcinogenic by the National Institutes of Health, National Academies, or World Health Organization. Vitter opposed the amendment and characterized it as a “fire, ready, aim” approach.
   
• Markey offered an amendment that would provide deadlines of three years, extendable for two additional years, for the entry into effect of EPA control actions that ban or phase-out chemicals. Vitter criticized the amendment, stating that the substitute bill already has clear language requiring bans or phase-outs in as short a period as practicable.
   
• Boxer offered an amendment that would require EPA to consider whether a chemical is stored near a source of drinking water when prioritizing chemicals. Vitter noted that the substitute bill already allows EPA to take exposure and hazard into account when prioritizing chemicals. Interestingly, the vote on this amendment resulted in a tie, which was not enough to approve it.
   
• Boxer offered an amendment identical to legislation introduced in the previous session of Congress, the Strengthening Protections for Children and Communities from Disease Clusters Act. Vitter stated that this was the most significant proposed amendment to the substitute bill because it would add new titles to the bill that are outside EPA’s authority. According to Vitter, the TSCA reform bills were never intended to address public health disease and response, and there are agencies that already do that, such as the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry. This amendment also achieved a tie vote by the Committee.

The Committee then voted on the manager’s amendment and it passed the Committee by a vote of 15-5 and will be reported favorably to the full Senate.

Commentary

The “markup” session included some interesting dynamics. Boxer, as well as Chair James M. Inhofe (R-OK), opened the event with general praise for the bipartisan cooperation and how gratifying it was to see path-breaking progress made towards a compromise bill. With the announcement that Senators Whitehouse, Merkley, and Booker were now going to co-sponsor the bill as revised, the revised bill has a large number of Senate Democrats, including many liberal Democrats, as co-sponsors. Boxer’s remarks appeared to acknowledge this legislative breakthrough, perhaps as tacit acknowledgement that if all or most Senate Republicans support the bill, and now with a large fraction of the Senate Democrats, there are more than enough votes to overcome a possible filibuster with ease.

Boxer then went on to give a lengthy articulation of the significant shortcomings of the package. This was far more than “damning with faint praise”; she described the bill as having many defects that were ill-advised, unreasonable, and insufficient — all of which would need to be addressed before it could gain her support. Further, she claimed to be speaking for many unnamed “community groups” and other interested parties that remained unable to support the legislation in its revised form (and asked that letters of opposition to the bill sharing these sentiments be placed in the record). This led to her offering a variety of amendments as described above. Importantly, at one point, Boxer remarked that she had prepared 27 amendments for the markup session and indicated that many and more may be offered if this bill moves to the floor of the Senate. The most generous assessment would be that she has indicated a hope to make further “improvements” to the legislation to gain her support.

What was more unusual, in a way, is that as Boxer offered amendments at the markup, many Committee members who were sponsors of the new compromise supported the amendments to a package they had agreed to support publicly within the past 48 hours or less. Partly this was a kind of political theater since it became clear that Inhofe and Vitter had enough votes to prevent any further amendments at this time, essentially on party line votes. So amendments could be offered for members to show support for ideas and options that obviously were left behind in the compromise package. Then, to top it all off, the final package was approved by the Committee 15-5, now including the bipartisan group of members who have recently co-sponsored the legislation. That is, the amendments all failed (by votes of 11-9 or 10-10), but the final package, containing none of the amendments, was agreed to on a 15-5 vote.

As for the implication of what this means for chances of success for any TSCA reform legislation, we offer two observations. First, if Boxer or others take an obstructionist tack by threatening to offer numerous amendments as part of any floor action, the leadership of the Senate may choose to wait and see if any better compromise can be reached. That perhaps is the strategy for some at this point, but time on the legislative calendar is relatively short. Second, if the legislation is approved by both the House and Senate but needs to be resolved in a Conference Committee, Boxer as Ranking Minority Member on the Committee will likely wield significant power over the agenda, pace, and naming of the minority members of the Conference.

As we have noted in conclusion about many of the recent maneuverings over TSCA legislation, stay tuned.