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March 19, 2015

TSCA Reform: Senate Committee Holds Hearing on Frank R. Lautenberg Chemical Safety for the 21st Century Act

Bergeson & Campbell, P.C.

On March 18, 2015, the Senate Environment and Public Works Committee held a hearing on the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697). A detailed analysis of S. 697 is available in our March 13, 2015, memorandum. There were a number of references to the late Senator Frank R. Lautenberg (D-NJ), who introduced several bills intended to reform the Toxic Substances Control Act (TSCA), and whether the current bill would accomplish his goals. Throughout the hearing, there were many comments regarding allowing the perfect to be the enemy of the good. Supporters of S. 697 maintain that it significantly improves TSCA, providing more authority and funding to the U.S. Environmental Protection Agency (EPA) to regulate new and existing chemicals. Critics of the bill argue that while the perfect may be the enemy of the good, S. 697 is not a good bill.

Mrs. Bonnie Lautenberg, Senator Lautenberg’s widow, spoke at the beginning of the hearing, describing Senator Lautenberg’s work on TSCA reform. She stated that Senator Lautenberg wanted TSCA reform to be his final, enduring legacy, and that he understood that it required the art of compromise. According to Mrs. Lautenberg, Senator Lautenberg chose to work with Senator David Vitter (R-LA) to introduce the Chemical Safety Improvement Act (S. 1009) (CSIA), which was a compromise bill rather than a “winner take all” bill, and this compromise bill set the stage for S. 697. Mrs. Lautenberg noted that some are still waiting for a winner-take-all bill, but urged Congress not to let the interests of a few states undermine the interests of the rest of the country.

Senator Tom Udall (D-NM), who continued to work with Senator Vitter on revisions to the CSIA and in preparing S. 697, noted that an earlier bill from Senator Lautenberg, the Safe Chemical Act, which received no Republican support and had no Republican co-sponsors, failed to move out of Committee in 2011. Senator Udall described Senator Lautenberg’s efforts, in his final days, to put his idea of perfection aside and find compromise. Senator Udall noted that New Mexico and many other states have very little protection from toxic chemicals, and with an estimated cost of $2.5 million to assess and regulate a chemical, lack the resources to do so on their own.

Witnesses at the hearing included:

  • Mr. Jim Jones, Assistant Administrator for the Office of Chemical Safety and Pollution Prevention, U.S. Environmental Protection Agency (EPA);
  • Mr. Ken Cook, President and Co-Founder, Environmental Working Group (EWG);
  • The Honorable Brian E. Frosh, Attorney General, State of Maryland;
  • Dr. Lynn Goldman, Dean, Milken Institute School of Public Health, The George Washington University;
  • Dr. Edward McCabe, Senior Vice President and Chief Medical Officer, March of Dimes Foundation; and
  • Dr. Richard Denison, Senior Scientist, Environmental Defense Fund (EDF).

In his testimony, Jones noted that there is no mandatory program under TSCA for the review of existing chemicals. The Obama Administration is committed to using its authority under TSCA to the fullest extent possible to regulate existing chemicals. Jones stated that the Obama Administration has not yet developed a formal position on S. 697, but continues to support EPA’s September 2009 principles for reform of chemicals management legislation. Jones acknowledged that the principles do not address the issue of state preemption but that the Obama Administration will look hard at how state preemption is addressed in whatever bill Congress considers.

After Jones testified, Senators had a number of questions concerning issues such as:

  • The length of time it would take EPA to complete its review of the first 25 chemicals — Jones cited statistics from his Office of Pesticide Programs (OPP) experience in implementing the Food Quality Protection Act (FQPA), showing it could handle about 40 actions/year and thought this likely the maximum on the chemicals side.
  • Whether S. 697 would allow industry to “buy” its way out of state regulation by paying EPA to conduct reviews — Jones noted that the bill did not accord such reviews the same preemption treatment as for other EPA actions.
  • State co-enforcement and preemption — Jones noted the bill would have some preemption effect and that these issues were handled differently under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
  • Whether state regulations such as Proposition 65 would be prohibited — Jones indicated that Proposition 65 was unaffected.
  • Whether cost-benefit is out of the safety assessment and determination — Jones agreed it was.
  • Whether there is a deadline for industry to apply a given control action — Jones agreed this was not included.
  • Whether the approaches in S. 697 meet all of EPA’s principles — Jones agreed that most were met, although there are technical issues regarding treatment of articles and there is not a timely requirement for control measures to enter into effect.
  • Whether the principles are EPA’s only considerations — Jones indicated that other issues were also being considered.
  • Are accidental spills covered by “conditions of use”? — Jones agreed they are covered.
  • Does S. 697 allow EPA to share confidential business information (CBI) with states? — Jones stated that it does.
  • Should low priority designations be subject to judicial review as final agency actions? — Jones agreed these types of decisions are typically reviewable.
  • Does S. 697 protect CBI as well as TSCA? — Jones indicated TSCA allowed too much information to be claimed as CBI and S. 697 requires substantiation and other steps that should limit such claims, and that S. 697 otherwise protects CBI as did TSCA.
  • Are the deadlines for EPA development of policies and procedures reasonable? — Jones agreed EPA could meet the requirements with the fee provisions included.
  • Are vulnerable populations covered? — According to Jones, yes.
  • Does EPA support use of cost-benefit analysis? — Jones indicated that EPA does support cost-benefit analysis, although it is frequently difficult to monetize benefits.

In his questions to Jones, Senator Vitter emphasized that S. 697 would grandfather permanently all current state chemical regulations enacted as of January 1, 2015, including Proposition 65. Jones agreed with Senator Vitter’s assessment that S. 697 would provide EPA the authority to reject any industry request to prioritize a chemical, and limit the number of chemicals prioritized at the request of industry. Senator Vitter also clarified when a chemical is prioritized this way, the preemption rules are different.

The second panel briefly summarized their written testimony and then took questions. Among the points made during this panel were the following:

  • Cook did not support the bill and criticized the preemption approach particularly. Cook criticized S. 697 for allowing chemicals to be used so long as they pose “no unreasonable risk of harm,” rather than ensuring that the chemicals pose a “reasonable certainty of no harm.” According to Cook, this second standard has been used successfully in evaluating pesticides, and has not resulted in banning them all.
  • Frosh, while agreeing that TSCA needed an overhaul, indicated strong concerns with the preemption provision. According to Frosh, S. 697 would put states out of the business of protecting their citizens from poison by, among other ways, prohibiting new state restrictions from the moment EPA begins consideration of high priority chemicals with a seven-year timeline before regulation is required, and no state can take action in the interim regardless of how toxic the chemical is. Frosh stated that priority is upside down — if a chemical is dangerous, EPA should be required to act as quickly as possible.
  • Goldman, former EPA Assistant Administrator for Prevention, Pesticides, and Toxic Substances, recounted her experience of testifying in support of TSCA change in the 1990s and supported S. 697 as dealing with many of the issues presented by TSCA even though the bill could be improved. She noted that S. 697 provides EPA with strong authority to require testing; deletes “least burdensome requirement” in taking Section 6 action; and has CBI provisions that would open up vast quantities of information that never should have been confidential or are outdated and would allow sharing CBI with states. The deadlines under S. 697 include fees that would be used to support EPA in its chemicals work. Goldman noted that S. 697 does not freeze the science by injecting 2015 science into a law that will need to work for a number of years. California’s Proposition 65 and certain other state efforts would not be preempted; rather, S. 697 would allow EPA to protect all citizens, not just residents of certain states that take action. Regarding the issue of new chemicals, an area which no one else had raised, she stated that the bill was a strong improvement over TSCA. In an interesting exchange with Senator Barbara Boxer (D-CA), Goldman agreed to review and offer a response to the letters submitted by legal experts who had argued that the bill was worse than current law.
  • McCabe testified that S. 697 is a critical step towards a bill that will be protective of maternal and children’s health, and that the bill represented a starting point.
  • Denison testified that he and his organization, Environmental Defense Fund, support S. 697 as it fixes the biggest problems in TSCA, has strong bipartisan support, and represents a culmination of a decade of work by Senator Lautenberg, all while acknowledging that the bill is less than he would want. Denison agreed that preemption had proven to be an exceedingly difficult issue, and that S. 697 is more preemptive than current law, but less so than the original bill. He also noted that while he strongly supported their efforts, state actions have restricted only about a dozen chemicals or classes of chemicals and that it was clear that a broad and effective federal effort such as in S. 697 was needed.


Notwithstanding the detailed opinions expressed by Senators and witnesses, the hearing went according to a mostly predictable pace and script. Senators Boxer and Ed Markey (D-MA), opposed to S. 697, cited what they described as fatal flaws in the legislation and the “overwhelming” correspondence received in opposition to the bill by environmental and citizen groups and other organizations that want a strengthened bill. The main cause of concern is rooted in the preemption provisions of the proposal, where passionate arguments about the wisdom, strength, courage, leadership, skills, and intuition of state governments were touted to indicate that any restriction on state actions would be catastrophic to the proper control of chemical exposures. Senator Boxer-supportive witnesses were asked to verify the concerns. In support of the legislation, Senator Vitter went through the various catalogs of principles, e.g., by the Obama Administration, to highlight how S. 697 addresses those concerns and asked witnesses to affirm that such principles did indeed capture the spirit and intent of the principles. In the end, as was known beforehand, the most difficult issue remains how or whether to fashion preemption boundaries on state actions.

Unfortunately, the soaring rhetoric praising states’ rights mostly blurred the substantive issues of how and where to draw any lines restricting any state actions. Almost in passing was mentioned how the universe of current state action about chemicals affects only approximately twelve chemicals — which is a sufficiently low number to support both pro and con positions (what is the big deal, only twelve times has it happened; twelve is just the start of what could be a large number of state-regulated chemicals).

Through the rhetorical fog, some key issues that are ripe for further development emerged, such as the need to consider whether TSCA’s preemptive effect should begin when any federal restrictions are imposed, during the time EPA considers “high-priority” chemicals, or at other times. The inherent possibility for long delays in completing reviews of difficult, scientifically complex assessments, and wanting to create new incentives for delays, was a recurring theme and suggests among the panel members that more tinkering can be expected. Making any preemptive effect begin at the conclusion of an EPA assessment will create incentives for chemical producers to assist with completion of the task. This option seemed to interest Committee members who spoke of trying to find further improvements.

There was also much mention made of the need for states to have independent authority to enforce actions EPA may take, as is the case in other environmental laws. At the end of the day, the tone of the panel was that this might be another area of further compromise.

In our view, it is clear from the hearing that the following areas in S. 697 need attention:

  • Preemption, which is no surprise, although there were some interesting suggestions offered, such as some variant on the approach to preemption in Dodd-Frank or in FIFRA. At the same time, the point was made that the bill deals with products and thus the approach should perhaps follow that in the Federal Food, Drug, and Cosmetic Act (FFDCA) regarding federal drug preemption.
  • Article provisions that are scattered in the bill need to be clarified and improved as they present technical issues challenges for EPA as currently structured. There are also concerns about the scope of the requirement on EPA to review each type of article and what this would mean for delaying or complicating EPA action, as well as the approach in Section 13 regarding import certifications for articles.
  • Deadlines and targets for assessment and control action (particularly a deadline for when a regulation must take effect) need to be revisited, although EPA indicated that the maximum number of regulatory review actions it could handle is about 40 per year (Jones based his estimate on his experience in the pesticide program).
  • Final agency action/judicial review must be available for low priority designations made by EPA.
  • One witness (Goldman) raised the need to address treaty issues presented by the Stockholm Convention on Persistent Organic Pollutants (POPs) and Rotterdam Convention on Prior Informed Consent (PIC).

A surprisingly large portion of the bill did not come up as an issue:

  • CBI received relatively little treatment, which may be due to its complexity and lack of expertise on the issue among witnesses.
  • No issues were raised about the approach to Section 4 testing.
  • The requirements on and deadlines for EPA to develop policies, procedures, and guidance in Section 4A were not raised as an issue and Jones indicated that he thought EPA could do what was required.
  • Goldman was the only witness to raise Section 5 new chemicals issues and no one disagreed with her statement that S. 697 improved on TSCA.
  • The prioritization screening approach, other than numbers and final agency action issue, did not elicit concerns.
  • None of the witnesses raised issues with the approaches in Section 8, including the active versus inactive chemicals list.
  • Judicial review had a passing question.
  • The fees approach was not challenged other than issues with industry paying for reviews, although we suspect that issues are lurking.

So now what? Does the legislation stand a chance of enactment even with over “hundreds of organizations” claiming that S. 697 is worse than current law (this is the number Senator Boxer cited as her count). The short answer is yes. The legislation already has eight Democrats as co-sponsors, which, if combined with the 54 Republican members, would be a working majority (over the needed 60-vote threshold to overcome a filibuster). It appears too soon to expect serious hardball in terms of vote-counting and floor action, and some of the noises coming from the hearing were bridges of opportunity to address some of the major issues identified (including deadlines, pace of EPA progress, budget, final agency action status of low priority designations, fees, imports, and regulation of articles to name a few). Preemption was and is the remaining obstacle, but at the end of the day, that could come down to vote counting. If there are 61 votes on the Senate floor, and the House action does not further complicate matters (not to mention a need for the President to sign the bill), TSCA reform could happen.

Among the most compelling testimony was Dr. Goldman’s reminder to the Committee that she first testified about the need for TSCA amendments in 1994 as Assistant Administrator — over 20 years ago. In a question and answer with Senator Vitter, Jones indicated that since 1990 with the current law, almost no chemicals have been banned or tested (one might quibble with the wording about the numbers tested or restricted, but Jones’ answers made the point). Also testifying was Senator Lautenberg’s widow, who stated that the late Senator believed TSCA reform would be perhaps the most singular achievement of his long Senate career — more important than his signature achievement of banning smoking on airplanes years ago.

The dueling themes of “don’t let the perfect be the enemy of the good” vs. “this bill is worse than current law” will need to be sufficiently brought together even if consensus is too far a goal. The specter of living with the current law for another 20-40 years is unpalatable to many interested stakeholders of different perspectives (a point made by Goldman). In the end, the summary slogan of any successful legislation may be “better than the alternative” — but stranger things have happened and even that would not have been expected last November when the Senate majority flipped to Republican control.