Obama Signs Chemical Safety into Law - This is how Bipartisan Works

President Obama on June 22, 2016 signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century law into force. It's been a long time coming, but it reflects the kind of action that can be accomplished when both parties focus on the reaching the goal rather than thwarting each other. Yes, the bill was bipartisan.

Let me emphasize that. The bill was bipartisan. And not bipartisan in the sense that one party rammed it through and got one or two members of the other party to sign on to it (which is how most "bipartisan" bills are passed). This was truly bipartisan. After both houses of Congress passed their own bills, and after the committee set up to do so reached agreement on a combined bill, the final bill was passed. And not just passed.

House: 403-12
Senate: Unanimous voice consent

Even the name of the law shows bipartisanship: the Frank R. Lautenberg Chemical Safety for the 21st Century. Frank Lautenberg was a Democratic Senator from New Jersey who first introduced a bill to update the Toxic Substances Control Act (TSCA, pronounced TOSCA) in 2005. Lautenberg introduced bill after bill during the next 10 years in an effort to update TSCA, a law passed in 1976 and horrendously inadequate for protecting the public from chemicals. Every Lautenberg bill died in committee without a vote. Literally in the final months of his life, Lautenberg agreed to lend his name to a compromise bill industry helped write for David Vitter, the Republican Senator from Louisiana to introduce. After Lautenberg's death, Tom Udall, Democratic Senator from New Mexico, stepped in to work with Vitter, the chemicals industry, the health and environmental advocacy representatives, the states, the EPA, and dozens of other stakeholders to fine tune the bill into the version signed into law by President Obama. 

Yes, the bill is very much industry friendly and nothing like the original bills Lautenberg introduced (which more resembled Europe's REACH law and had zero chance of passing in the United States). And no, the new law won't instantly make Americans any safer. But it does provide a way for EPA to assess the over 62,000 chemicals that were grandfathered onto the TSCA Inventory back in the 1970s without any health and safety assessment at all, and for which the EPA had very limited ability to evaluate. The new law also creates a new way of assessing new chemicals, one that requires a "yes" or "no" conclusion on every chemical (the old system allowed chemicals to default to "yes" if EPA hadn't explicitly said "no" within 90 days. And there are more benefits.

For those not aware of what the new law or the old TSCA does, you can read everything you need to know here. You can read President Obama's comments at the signing here, or watch the whole thing on C-SPAN here.

As the President noted in his remarks:

The Frank R. Lautenberg Chemical Safety Act for the 21st Century will make it easier for the EPA to review chemicals already on the market, as well as the new chemicals our scientists and our businesses design.  It will do away with an outdated bureaucratic formula to evaluate safety, and instead focus solely on the risks to our health.  And it will finally grant our scientists and our public servants at the EPA the funding they need to get the job done and keep us safe.

There is a lot more that needs to be done, mostly by the EPA to come up with the regulations to implement the law, but it shows what can be accomplished when both parties work for the people that elected them and not for their party gains itself. It took a dozen years and a lot of hard work.

Let me emphasize that last part. It took a dozen years. And it took a lot of hard work. A lot of that hard work was done by lobbyists. Yes, lobbyists. This page hasn't been shy about standing up to lobbyists who abuse their power by dishonestly attacking scientists or the EPA or politicians. But lobbying is not always evil (perhaps, at least in some cases, it is a necessary evil).

This law came about not just because of the work of lawmakers and their staffs (who worked very hard), but also because of the hard work of people outside of government who lobbied those lawmakers and staffs. The American Chemistry Council, led by Cal Dooley (a former Congressman himself), was the primary advocate for chemical companies, though there were many other chemical lobbyists who contributed. The Environmental Defense Fund, led by Richard Denison, advocated tirelessly for human and environmental health provisions to protect the public. Again, many other environmental and health advocacy groups lobbied on the public's behalf. The end result is not perfect, and not everyone is perfectly happy with it, but it provides a much better system for evaluating chemicals - new and old - that should in the long run be better at protecting the health and safety of the public.

Finally, this new law is a reminder to the public that our elected representatives can actually do their jobs when they want to. As the President noted:

You don’t get all these people in the same room without a few late nights on Capitol Hill.  I know there were times when folks questioned whether or not all the parties involved would be able to reach this agreement....But that’s what public service is about –- pushing through disagreements, forging compromise, especially when it’s hard, and especially when it’s about something as important as the health and safety of our kids and our families.

It's up to us, the public, to pay attention, learn the facts, and press our elected officials to act. They won't do it without us pressing them to do it. That's true for chemical safety, rational gun laws, climate change, and every other issue that affects our every day lives. For Congress to act, we, the people, must act.

The Long Road to Reforming America's Chemical Law May Soon Be Over

Earlier this week it was announced that Senators Barbara Boxer (D-CA) and James Inhofe (R-OK) had reached an agreement on the long awaited update to the Toxic Substances Control Act (TSCA). TSCA was originally passed in 1976 and signed into law by President Gerald Ford. To say that it is outdated would be the understatement of two centuries. Reform has been a long road with many twists and turns, not the least of which is the first sentence in this paragraph.

Yes, the news was that Boxer and Inhofe had agreed on the TSCA reform law. The fact that Boxer and Inhofe have agreed on anything is news in itself, but the fact that the two of them are even mentioned in the same breath as this new law is amazing given that neither really had much to do with its development.

A quick recap. Late Senator Frank Lautenberg (D-NJ) first introduced a formal bill to reform TSCA back in 2005. It never even got a discussion in committee. Neither did his re-try in 2009. His re-try in 2013 was introduced not long before he died at the age of 89. In the intervening weeks, a bed-ridden Lautenberg joined with Senator David Vitter (R-LA) to introduce a TSCA reform bill that was light-years away from the bill Lautenberg had just reintroducd. You read that right. A Republican from the petrochemical state of Louisiana introduced a chemical control bill with the man who had been fighting to reform chemical control for a decade.

After Lautenberg's passing, Senator Tom Udall (D-NM) took over and actually worked very hard with Vitter to refine and improve the bill. After a few iterations (most of which were virulently opposed by Senator Boxer), they came out with a bill they named the "Frank R. Lautenberg Chemical Safety for the 21st Century Act." A completely different bill was introduced in the House, but that bill was considered a joke by everyone in the know, a fact that was obvious by its unanimous passing by both parties in a House where bipartisanship is considered an act of war. The House bill was merely to have something they passed so that the committee that reconciles the Senate and House versions into a law had something to sign off on. Given that Boxer and Inhofe, the two political powerhouses in the Senate, had the final say indicates what everyone knew - that the final version is essentially the Senate version with a few more assurances that states aren't completely blocked from dealing with chemicals that EPA has yet to rule on.

Which gets us to now. The conference committee has come up with a "reconciled" version that is expected to be passed by both houses of Congress shortly. The President has indicated he will sign it, perhaps with a big ceremony at the White House. Most people are happy - Republicans, Democrats, health and safety advocacy groups, chemical trade associations, and the consultants and lawyers who will make tons of money helping their clients comply with the law.

Now here is the slap in the face. The new TSCA law won't make us safer. As the article at the link notes:

The law itself won't make us safer, but the fact that we'll be focused on identifying and prioritizing chemicals to take a closer look rather than waving our hands in the air doing nothing...well, that focus will make us safer.

So congratulations to industry for getting a law that favors them passed. Congratulations for health and safety advocacy groups for getting a law passed that at least gets us beyond the distractions of doing nothing while debating a new law. Congratulations to Congress for wasting taxpayers money and time "debating" for 10 years something that is only getting passed now because industry thinks Republicans will lose control of at least part of Congress in the fall. Sure, that sounds cynical, but not as much as thinking Republicans in Congress are doing something for the public good.

The long road to reforming TSCA is not over. Now the work begins. The EPA will have to develop a way to implement a law while continuing to lose senior staff, having their budget cut frequently, and being harassed by Republican lawmakers/lobbyists on a daily basis. It will be EPA who will figure out how to improve the health and safety evaluation process for chemicals. May they survive the success of reforming TSCA.

Senate Committee Hearing on TSCA Reform Wednesday July 31 2013

The Senate Environment and Public Work Committee, led by Senator Barbara Boxer, is holding a hearing on TSCA Reform Wednesday, July 31, 2013. Starting at 9:30 am EDT, the hearing will be held live in the 406 Dirksen Senate Building hearing room. A live webcast can be viewed when the hearing begins. The purpose of the hearing: “Strengthening Public Health Protections by Addressing Toxic Chemical Threats.” Mainly it is a mechanism for EPW Chair Boxer to address her concerns related to the bipartisan Safe Chemicals Improvement Act bill introduced by the late Senator Frank Lautenberg and Senator David Vitter. The bipartisan bill came as a surprise only a month after Lautenberg had reintroduced his Safe Chemicals Act bill. Boxer called the hearing in an effort to ensure that industry had not unduly influenced the ailing Lautenberg and gotten a death-bed commitment for an industry-friendly bill that is dramatically different than Lautenberg's own bill. Other concerns to be addressed with be the preemption provisions, which the state of California (and other states) are concerned will block any state action on toxic chemicals even if EPA does not take sufficient action to protect human health and the public. A long list of witnesses have been identified: Panel 1 Mr. Michael A. Troncoso Senior Counsel Office of the Attorney General, California Mr. H. Michael Dorsey Chief, Homeland Security and Emergency Response West Virginia Department of Environmental Protection Mr. Ken Zarker Manager, Pollution Prevention & Regulatory Assistance Section Washington State Department of Ecology Panel 2 Mr. Daniel Rosenberg Senior Attorney Natural Resource Defense Council Mr. Thomas McGarity Professor of Law University of Texas at Austin Ms. Linda Fisher Vice President of Safety, Health and Environment and Chief Sustainability Officer DuPont Mr. Stephen A. Owens of Counsel, Squire Sanders, LLP Ms. Linda Reinstein Executive Director and Cofounder Asbestos Disease Awareness Organization Ms. Robin Greenwald of Counsel Weitz & Luzxenberg Mr. Mark N. Duvall Principal Beveridge & Diamond, PC Mr. Ken Cook President and Co-founder Environmental Working Group Panel 3 Ms. Nancy Buermeyer Senior Policy Strategist Breast Cancer Fund Ms. Susan Vickers, RSM Vice President of Community Health Dignity Health Ms. Mauren F. Gorsen, Esq. Partner Alston + Bird, LLP Dr. Jonathan Borak, MD, DABT Clinical Professor of Epidemiology and Public Health Clinical Professor of Medicine Yale School of Medicine Mr. Cecil Corbin-Mark Deputy Director/Director of Policy Initiatives We Act for Environmental Justice Ms. Dorothy Felix President Mossville Environmental Action Now Mr. Andrew R. Hackman Vice President of Government Affairs Toy Industry Association, Inc. Ms. Ansje Miller Eastern States Director Center for Environmental Health For more information and the link to the live feed, go to the EPW hearing page.			3

House Committee Will Hold Hearing on TSCA Reform

Following up on the surprise introduction of a bipartisan TSCA reform bill in the Senate, the House Energy & Commerce Committee's environment and economy subcommittee has scheduled a hearing to discuss "Title I of the Toxic Substances Control Act: Understanding its History and Reviewing its Impact." It's unclear how whether this hearing is a counter to the Lautenberg-Vitter Safer Chemical Improvement Act bill introduced in the Senate, or the beginning of support for the measure.

The Senate is controlled by Democrats, the House by Republicans. Given that the bill was developed by Senator Vitter and the chemical industry and includes significant compromise on the part of the Democrats and environmental groups as opposed to Lautenberg's previous Safe Chemical Act bills, it's likely the House action is to pave the way for some sort of TSCA reform bill to be put into law. The bill was introduced with a dozen bipartisan cosponsors as Senator Lautenberg was living what turned out to be his final days; he died on June 3rd less than two weeks after the bill was introduced.

The hearing will take place on June 13th at 10:15 am room 2322 of the Rayburn House Office Building. More details and the invitation-only witnesses will be posted on the subcommittee's web page.

Senator Frank Lautenberg has died

Long-time advocate of safer chemicals, Senator Frank Lautenberg (D-NJ), has died at the age of 89.

Read more here.

And here.

Lautenberg has repeatedly pushed for modernization of the Toxic Substances Control Act (TSCA). He recently co-sponsored a bill with Senator David Vitter (R-LA) only weeks after reintroducing his own bill.

The cause of death was viral pneumonia. The Senator had been ill for the last few months. He survived a bout with cancer several years ago.

The surprise introduction of the Safer Chemicals Improvement Act (SCIA) was seen by some as a sign that Senator Lautenberg's health had deteriorated and that his colleagues wanted to honor him with a chemicals bill that could pass the Senate.

Republican Governor Chris Christie will appoint someone to fill Lautenberg's seat.

Senators Lautenberg and Vitter Announce Bipartisan Chemical Safety Improvement Act

In a surprise move, Democratic Senator Frank Lautenberg (NJ), long a champion of safer chemicals, and Republican Senator David Vitter (LA) jointly announced introduction of the Chemical Safety Improvement Act of 2013. 

The bipartisan cosponsors include: co-sponsored by U.S. Senators Kirsten Gillibrand (D-NY), Mike Crapo (R-ID), Richard Durbin (D-IL), Lamar Alexander (R-TN), Charles Schumer (D-NY), James Inhofe (R-OK), Mary Landrieu (D-LA), Susan Collins (R-ME), Joe Manchin (D-WV), Marco Rubio (R-FL), Robert Menendez (D-NJ), and John Hoeven (R-ND).

 More details on Senator Lautenberg's website.

Reaction from the American Chemistry Council.

From the American Cleaning Institute.


From the Consumer Specialty Products Association (CSPA). CSPA also provides a table comparing the new Chemical Safety Improvement Act of 2013 with TSCA.

From Safer Chemicals, Healthy Families (a coalition of health and environmental advocates).

According to the announcement, "the Lautenberg-Vitter “Chemical Safety Improvement Act of 2013” would:

• Require Safety Evaluations for All Chemicals: All active chemicals in commerce must be evaluated for safety and labeled as either “high” or “low” priority chemical based on potential risk to human health and the environment.  For high priority chemicals, EPA must conduct further safety evaluations. 
• Protect Public Health from Unsafe Chemicals: If a chemical is found to be unsafe, the Environmental Protection Agency (EPA) has the necessary authority to take action.  This can range from labeling requirements to the full phase-out or ban of a chemical.  
•  Prioritize Chemicals for Review: The Environmental Protection Agency will have to transparently assess risk, determine safety, and apply any needed measures to manage risks.
• Screen New Chemicals for Safety: New chemicals entering the market must be screened for safety and the EPA is given the authority to prohibit unsafe chemicals from entering the market. 
• Secure Necessary Health and Safety Information: The legislation allows EPA to secure necessary health and safety information from chemical manufacturers, while directing EPA to rely first on existing information to avoid duplicative testing. 
• Promote Innovation and Safer Chemistry: This legislation provides clear paths to getting new chemistry on the market and protects trade secrets and intellectual property from disclosure. 
• Protect Children and Pregnant Women: The legislation requires EPA to evaluate the risks posed to particularly vulnerable populations, such as children and pregnant women, when evaluating the safety of a chemical—a provision not included in existing law.
• Give States and Municipalities a Say:  States and local governments will have the opportunity to provide input on prioritization, safety assessment and the safety determination processes, requiring timely response from EPA, and the bill establishes a waiver process to allow state regulations or laws to remain in effect when circumstances warrant it.  

Will current efforts to reform the TSCA chemical control law actually roll back progress?

Just last week Senator Frank Lautenberg (D-NJ) reintroduced his Safe Chemicals Act and there was hope for some sort of TSCA reform. Senator David Vitter (R-LA) is expected to introduce an alternative, chemical-industry-backed, counter-bill in the next few weeks. But Richard Denison, senior scientist at the Environmental Defense Fund (EDF), believes that Senator Vitter's bill will actually roll back even the current limited authority of EPA to regulate chemicals under TSCA.

While some of this is speculation since very few people have seen Vitter's bill - he seems to have consulted primarily with only the one major chemical trade association and cut out other chemical groups, health advocates, environmentalists, and the public - Denison gleans from public statements several areas that could result in dramatic weakening of the current TSCA.

For example, rather than making it easier for EPA to request testing on chemicals with little data but apparent concern, Vitter's bill may actually make it harder for EPA to do so. According to Denison, the bill could also restrict the abilities of states to step in when the federal authorities fail, or are incapable, of taking action. There has also been widespread questioning of the risk standard proposed in the Lautenberg bill, a standard that Denison points out has been endorsed by major medical groups as necessary to protect vulnerable subpopulations, including developing fetuses and infants. The Vitter bill would also apparently make no changes to the current PMN process for new chemicals, a process that requires virtually no health and safety data be submitted in most cases.

So despite some movement on TSCA reform - the introduction of one and probably two new bills - it seems we're headed for another stalemate in which the goal is to stop TSCA reform. Again.

Denison's blog article can be found on the EDF website.

Lautenberg to push TSCA reform bill

The Philadelphia Inquirer is reporting that Senator Frank Lautenberg will try once again try to reform the nearly four decade old Toxic Substances Control Act. According to an article by Sandy Bauers published online, Lautenberg plans to introduce his newest version of the Safe Chemicals Act on Wednesday.

The Democratic Senator from New Jersey has been trying since 2005 to get passage of a TSCA reform bill. The most recent attempt in 2012 made it out of Committee on a partisan vote, only to die from lack of interest in the full Senate. Recently Republican Senator David Vitter has indicated that he was working on an alternative, chemical industry-backed, bill.

The Bauers article can be read here.

The announcement is now on Senator Lautenberg's site.

Full text of the 2013 bill is here.

A summary is here.

Safer Chemicals Healthy Families, an NGO, says the bill "much-needed legislation would protect Americans from unsafe chemicals."

Another NGO, the Environmental Working Group, also favors the Lautenberg bill.

A trade association, the American Chemistry Council, thanked Senator Lautenberg for his commitment, but indicated it was encouraged by "efforts in the Senate led by Senator David Vitter (R-LA) to develop a new proposal." Senator Vitter is expected by some to introduce a competing "industry" bill later in the month.

Another trade association, the Society of Chemical Manufacturers and Affiliates (SOCMA) issued a press release today that did not mention Lautenberg's bill specifically, but called for a more piecemeal approach through "bipartisan cooperation."

According to the summary from Senator Lautenberg's office, the bill is identical to the one passed out of Committee last summer. That bill was never taken up for debate during the limited remaining legislative calendar during the election period. By reintroducing the bill Senator Lautenberg hopes to rejuvenate the discussion of much needed TSCA reform. Given the current political climate it is likely that no action will be taken until Senator Vitter's competing bill is offered.

Senator Lautenberg will not seek reelection

As I've previously indicated would be likely, Senator Frank Lautenberg of New Jersey has decided not to seek reelection in 2014. Lautenberg, who will be 90 years old during the campaign, will let younger candidates run for his seat.

Corey Booker, the popular Mayor of Newark, NJ, has already announced that he would run for Lautenberg's seat. Representative Frank Pallone had also privately indicated that he would likely run if Lautenberg chose to step down, though he has not yet made it official.

Lautenberg Steps Down as Chair of Toxic Chemicals Subcommittee

Senator Frank Lautenberg of New Jersey, long a champion of efforts to reform the Toxic Substances Control Act (TSCA), will no longer chair the Superfund, Toxics, and Environmental Health Subcommittee of the Senate Environment and Public Works Committee. Lautenberg, of course, has introduced several versions of a Safe Chemicals Act over previous Congresses.

Replacing Lautenberg as chair will be Senator Tom Udall of New Mexico. Barbara Boxer of California chairs the full EPW Committee. David Vitter of Louisiana had already replaced Senator Inhofe of Oklahoma as ranking minority member of the committee. The main reason given for the change to Udall on the toxics subcommittee is that Lautenberg has taken up the chair for the Financial Services subcommittee of the Senate Appropriations Committee and simply will not have time. Lautenberg is up for reelection in 2014, though at 90 years old it seems unlikely he will run.

Meanwhile, Lautenberg expects to continue his push for TSCA reform during the current Congress, and with Vitter apparently working with industry to craft a counter-bill, it is possible that we'll see some sort of TSCA reform bill at least reach debate.

26 States to Consider Toxic Chemicals Legislation in 2013

As TSCA reform enters another year without any resolution, at least 26 states are considering action to enhance protection of public health and the environment from exposure to chemicals. According to the advocacy coalition, Safer States:

In 2013, we expect at least 26 states to consider legislation and policy changes that will:

• Restrict or label the use of bisphenol A (BPA) in receipts, children's products and food packaging.
• Require removal of certain toxic flame retardants from children's products, home furniture or building materials.
• Change disclosure rules so that concerned consumers will have a way to identify toxic chemicals in products.
• Encourage manufacturers to remove identified toxic chemicals in favor of safer alternatives.
• Ban cadmium, a dangerous, persistent metal that is often found in inexpensive children's jewelry.
• Ban formaldehyde from cosmetics and children's products.
• Promote green cleaning products in schools.

Safer States states that "We believe families, communities, and the environment should be protected from the devastating impacts of our society’s heavy use of chemicals. We believe that new state and national chemical policies will contribute to the formation of a cleaner, greener economy." They have also been highly critical of industry, reporting on what it sees as misplaced priorities "inside the toxic chemical industry."

So state efforts continue. At the federal level, Democratic Senator Frank Lautenberg has indicated that he will reintroduce his Safer Chemicals Act. The SCA was passed out of committee last year but never came to the Senate floor for debate or vote. The committee-passed version includes substantial changes from the original bill, including many adjustments to take into consideration concerns expressed by industry. Still, industry widely denounced the bill as unworkable, a position that Richard Denison of the Environmental Defense Fund and Andy Igrejas of Safer Chemicals Healthy Families have asserted is disingenuous at best. Industry is, however, reportedly working with Republican Senator David Vitter on what is effectively an industry-sponsored bill. It is unclear when or if Vitter's bill will be introduced, but any such bill would at least provide a counter-position to that of Lautenberg and offer opportunity for substantive debate.

Senate Passes Safe Chemicals Act out of Committee

The Senate committee charged with reforming the 1976 Toxic Substances Control Act (TSCA) has voted to send the bill proposed by Senator Frank Lautenberg to the full Senate for open debate and a possible vote. As expected after Tuesday's contentious hearing, the committee vote split along party lines with the ten Democrats voting for it and the eight Republicans voting against it.

Republicans argued that the vote on the bill introduced one and a half years ago was premature, and that there had not been time for the "bipartisan" discussions to reach fruition. Democrats countered that the bill had been substantially revised many times following dozens of hearings, stakeholder meetings, and private consultations with the Republican members. Senators Boxer and Lautenberg felt that it was important to get everyone's views out in the open so that their constituents could make judgments on whether to support the bill.

Indeed, the committee issued a 174-page Amendment that documents all of the changes to the original bill (S.847). They also issued a short summary highlighting the key changes.

Many of the changes incorporate the concerns of industry and the Republican minority. For example, the original bill introduced in 2005 would have required all chemical manufacturers to undertake a REACH-style data development in which all chemicals would need a substantial amount of health and safety data to be submitted prior to manufacture or in order to keep existing chemicals on the market. To incorporate industry concerns, the version passed by the committee yesterday "better focuses resources on priority chemicals" while continuing to require EPA to do most of the work of determining if a chemical is not safe. Existing chemicals would be evaluated in batches and screened through a prioritization process, then undergo safety determinations in order of priority.

The changes also require new information and testing "only when necessary." Data could be provided through means other than new testing when appropriate and defensible, for example, using QSARs, read-across, and non-animal studies.

Confidential business information (CBI) provisions have also been revamped to address industry concerns, and the new bill "better balances protection" of CBI versus the public's right to know about the chemicals to which they may be exposed.

As noted yesterday, it is highly unlikely that the Safe Chemicals Act will ever be passed by the Senate during this session of Congress, and even if it did come to a vote would likely never meet the 60-vote supermajority needed to even get to the actual up or down vote on the bill itself. And even if it somehow got that far, the House is highly unlikely to consider any bill at all. Facing this uphill battle the sponsors of the bill (Lautenberg and 21-cosponsors, all Democrats) felt it necessary to move the bill forward to all open expression of the conflicting views.

Information on the bill can be reviewed on the Thomas Library of Congress site.

Senate Moves TSCA Bill to Vote After Contentious Hearing

[Update: The Safe Chemicals Act has been approved by vote of the Committee on July 25, 2012] As noted yesterday, the Senate held a hearing on "EPA's authorities to control toxic chemicals." The hearing built on many previous hearings to gather information relevant to the reform of the TSCA chemical control law.  The hearing began fairly benignly but ended rather contentiously, with Senators Barbara Boxer (D-CA) and Frank Lautenberg (D-NJ) preparing for a markup of the Safe Chemicals Act bill today, July 25, 2012.

The hearing ostensibly was in response to an investigative series published recently by the Chicago Tribune. The Tribune series argued that "two powerful chemical industries - Big tobacco and chemical manufacturers - waged deceptive campaigns that led to the proliferation" of flame retardant chemicals such as the PBDEs. Witnesses during the hearing included Dr. Heather Stapleton, an expert on flame retardant chemicals at Duke University, and Marshall Moore, Director of Technology, Advocacy and Marketing at Chemtura, a manufacturer of PBDEs and one of the companies specifically identified by the Chicago Tribune.

In their opening statements the Senators offered reiterations of their usual positions. Democrats focused on the toxicity, persistence and bioaccumulation of PBDEs in particular and chemicals in general. Republicans, in particular Senators James Inhofe (R-OK) and David Vitter (R-LA), expressed their disappointment that the Democratic majority of the committee was planning to bring Lautenberg's Safe Chemical Act bill to markup. Republicans felt that this meant the end of the "bipartisan" discussions in which Democratic and Republican members of the committee and their staffs had engaged for the year and a half since the introduction of Lautenberg's bill.

Democrats countered that the "bipartisan" discussions were going nowhere and it was time to get Republican views out in the open with a markup and committee vote on the bill. Lautenberg reminded his colleagues that he first introduced a version of the Safe Chemicals Act in 2005 and that over the last seven years there had been dozens of hearings, meetings, and consultations with Republicans on the best way to reform TSCA. All stakeholders have agreed publicly many times that TSCA is in dire need of reform, a position EPA acting Assistant Administrator Jim Jones reiterated in his testimony. Indeed, Lautenberg's Safe Chemicals Act bill has clearly migrated from a more NGO-approved (all data for all chemicals) approach in the original to a more Industry-friendly (prioritization) approach in the current version. The markup is an attempt by Democrats to put the Republican position on record given that passage of a TSCA reform bill is highly unlikely in this Congress, and perhaps impossible in the next Congress depending on the results of this fall's election.

Democrats were clearly frustrated with the Republicans during the hearing. This became especially evident during the second panel in which Senator Boxer repeatedly made it clear which witnesses were called by the majority party (Democrats) and which were called by the minority party (Republicans). Boxer also repeatedly praised the courage of mother and former Maine House leader Hannah Pingree, who had said during questioning that "the chemical industry does not always tell us the truth." Boxer similarly praised the work of fireman Tony Stefani, who heads a Firefighters Cancer Prevention Foundation, which he started after he and his fellow firefighters were found to have higher incidences of the kind of cancers that he claims "are usually seen in workers in chemical manufacturing."

In contrast, Boxer several times addressed chemical manufacturing representative Marshall Moore in ways that can euphemistically described as "direct." She told Moore that "he needs to apologize" for "grossly distorting" a study on which he relied for demonstrating effectiveness and safety of flame retardant chemicals. Boxer also told Moore that "take a course in ethics" because the industry had set up a "phony fire safety group" (based on the charges in the Tribune series). Moore was remarkably calm and respectful given Boxer's direct accusations and insisted that his company and others had conducted and provided to EPA dozens of studies to aid the assessment.


The hearing demonstrated that TSCA reform, despite the repeated public assurances by all stakeholders that modernization was necessary and desirable, is likely not going to happen. As noted, while the Republicans expressed their disappointment that the bill will go to markup and probably to a committee vote, Democrats expressed their continued desire to work on a bipartisan bill, which they now believe can better be accomplished by an open debate on the Senate floor where each individual Senator would be able to put their views on record.

Of course, even in the unlikely event that a bill could be passed in the Senate (virtually all bills now must pass 60 votes for cloture before they can even make it to the floor for a vote), there is essentially no chance that the Republican-controlled House would even take up a companion bill.


More information and downloads of the testimony can be found on the committee hearing page.

TODAY - Senate Hearing on Exposures to Toxic Chemicals

There will be a Senate hearing today, Tuesday, July 24, 2012 to hear witnesses on the topic "Oversight on EPA Authorities to Control Exposures to Toxic Chemicals." The hearing is being held by the Full Senate Environment and Public Works Committee and its Subcommittee on Superfund, Toxics, and Environmental Health. The subcommittee is chaired by Senator Frank Lautenberg (D-NJ) who has been working for several years to modernize the Toxic Substances Control Act (TSCA) originally passed in 1976.

Lautenberg and other Democratic members of the committee are planning a markup and vote on his Safe Chemicals Act bill on Wednesday. Republican members immediately balked at the idea, noting that they were not given any warning of the vote. At the previous hearing by this subcommittee many months ago, Democrats had practically begged Republicans and industry to "give us a bill," i.e., rather than merely say the current bill was inadequate, actually propose a bill that Republicans and industry could live with given that all parties claim to want a workable modernization of TSCA. Republicans and industry declined to do so.

While the Safe Chemicals Act - TSCA reform - has been largely ignored during this election year, it has received renewed interest lately as the result of a Chicago Tribune investigative series that accused the chemical industry of misleading the public and regulators about both the effectiveness and safety of brominated flame retardants.

Today's hearing begins at 10:00 am ET in room 406 of the Dirksen Senate building. The hearing will be webcast. The full agenda and list of witnesses is below:

Opening Remarks

Panel 1

The Honorable Jim Jones Acting Assistant Administrator for the Office of Chemical Safety and Pollution Prevention U.S. Environmental Protection Agency

Panel 2

Hannah Pingree Mother, Former Speaker of the Maine House of Representatives

Dr. Heather M. Stapelton Assistant Professor of Environmental Chemistry, Environment Sciences & Policy, Nicholas School of the Environment Duke University

Marshall Moore Director, Technology, Advocacy and Marketing Great Lakes Solutions, A Chemtura Business

William K. Rawson Partner, Chair, Environment, Land & Resources Department Latham & Watkins LLP

Tony Stefani President, Founder San Francisco Firefighters Cancer Prevention Foundation

 

Poll Shows Most Americans Want to Update Chemical Control Law

A new poll conducted by Public Opinion Strategies, a leading Republican polling firm, shows that "voters are concerned about the effects of exposure to toxic chemicals in day to day life." The poll also shows that "most voters support 'stricter regulation of chemicals produced and used in everyday products.'"

POS conducted the national telephone survey of 800 registered voters on June 25-27, 2012. The overall margin of error is +3.46%. Interviews were distributed proportionally throughout the country. More information on the poll results and methods can be found here.

Poll results show that 77% of respondents support specific legislation to reform the Toxic Substances Control Act (TSCA), the law passed in 1976 for which all stakeholders (industry, NGOs, EPA, health and environmental advocates) agree needs to be modernized. Support for reform of the law was "wide-spread and broad-based," i.e., large majorities of all demographics surveyed agreed that the law was in need of updating.

POS concluded that "U.S. voters overwhelmingly support reform to regulations overseeing chemicals produced and used in everyday products, particularly when provided with specifics about what the reform might entail." Even when robust arguments on both sides of the issue were presented, "voters continue to side with supporters of reform."

TSCA reform has been the subject of many attempts by Senator Frank Lautenberg (D-NJ) and others to introduce legislation. Lautenberg's most recent effort, the Safe Chemicals Act, has languished in Committee without action. This might change this week, however, as Lautenberg says he expects to bring the bill to markup this week, which may lead to a Committee vote as early as Wednesday.

Meanwhile, the subcommittee and full committee of the Senate Environment and Public Works Committee has scheduled a hearing for Tuesday, July 24th to discuss Congressional oversight of EPA authorities related to TSCA. Of specific interest is a recent investigative series by the Chicago Tribune that suggested the brominated flame retardant industry had overstated benefits and understated risks of a class of flame retardants called PBDEs. This builds on a hearing held recently by Senator Dick Durbin (D-IL).

Senator Durbin Holds Hearing on Brominated Flame Retardants

Senator Dick Durbin (D-IL) held a hearing on Tuesday, July 17, 2012 regarding the question:

AreConsumers Adequately Protected from Flammability of Upholstered Furniture?  Hearing on the Effectiveness of FurnitureFlammability Standards and Flame Retardant Chemicals.

Durbin's concern stems from a recent Chicago Tribune investigative series that suggested the flame retardant industry had misled regulators on both the effectiveness and safety of a class of brominated flame retardants called PBDEs. The Senator is a strong supporter of overhauling the 26-year old TSCA law and is a co-sponsor of the Safe Chemicals Act introduced by Senator Frank Lautenberg (D-NJ).


Scheduled witnesses at the July 17th hearing were:

 

Panel I

·        The Honorable Inez Tenenbaum, Chairman, Consumer Product Safety Commission.

·        James J. Jones, Acting Assistant Administrator, Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency.

Panel II

·        August (Gus) Schaefer, Sr., Vice President and Chief Safety Officer, Underwriters Laboratories, Inc.

·        Andy Counts, CEO, American Home Furnishings Alliance.

·        Peter Van Dorpe, Chief of the Training Division for Chicago Fire Department.

More information on the hearing can be found here.

Lautenberg Leads Bipartisan Group of 26 Senators in Calling for Reform of Toxic Chemicals Law

Senator Frank Lautenberg (D-NJ) and 25 other Senators, including three Republicans, wrote a letter to EPA Administrator Lisa Jackson yesterday to "express our support for...actions to address a class of flame retardant chemicals called polybrominated diphenyl ethers (PBDEs)."  PBDEs are "found in a number of everyday consumer products" and were the subject of a recent Chicago Tribune investigative report that "revealed that flame retardant manufacturers may have misled the public for decades regarding both the risks and efficacy of these chemicals."

As part of its chemical action plan issued in December 2009, EPA proposed several actions under its existing TSCA authority to address the risks of PBDEs and collect additional data for assessment. Some of those actions are in progress while the implementation of others are uncertain given the continuing attempts to cut EPA budgets and limit its use of TSCA authority.  In the letter the Senators "commend the EPA for taking steps to address PBDEs," but acknowledge that Congress must take action to reform the current TSCA law.

Lautenberg introduced his latest version of the Safe Chemical Act this past year but has been unable to move it even to committee debate because no Republicans have offered any support for discussions to take place.  Lautenberg did get three Republican Senators - Olympia Snowe and Susan Collins from Maine and Lisa Murkowski from Alaska - to sign on to this current PBDE letter and has hopes that Republicans will concede to begin debate on TSCA reform.  However, Senator Snowe is retiring at the end of this term and given the unlikelihood of any significant action being undertaken prior to the November elections, it may be that Lautenberg is leaning more on wishful thinking than any actual belief that Republicans will agree to support TSCA reform.

More information can be found on Senator Lautenberg's web page.

The letter can be viewed or downloaded as a PDF here.

Is TSCA Reform Happening this Fall?

The short answer is, probably not.  But it does appear that Senator Frank Lautenberg's office will be pushing for a markup this fall of the draft bill introduced this past spring.  Lautenberg's "Safe Chemicals Act of 2011" included many industry-friendly changes from the original "Kid Safe Chemical Act" (including no longer mentioning kids in the name).  The bill introduced in April would have required companies to submit "basic hazard and exposure data to quickly determine the risk and assess the need for further testing or restrictions."

Over the summer the staffs of Senators Lautenberg and Inhofe held a series of stakeholder meetings in an effort to find common ground and a path forward.  These meetings included - separately - representatives from NGOs (e.g., Environmental Defense Fund) and industry (e.g., ACC and SOCMA).  Topics for the meetings included defining a "safety standard" and coming up with prioritization schemes that would focus efforts on those chemicals deemed most risky.  In August, EPA proposed such a prioritization scheme, which was countered by an alternative scheme by the American Chemistry Council.

Whether the markup happens or not will depend on the legislative calendar, but historically anything that doesn't get done by this fall will likely not get done during the 2012 election year.  With the initial changes Lautenberg already made and the Democrats' willingness to compromise the grand reform of TSCA for a more industry-friendly reform, the feedback from the stakeholder meetings suggest that any markup will further limit the extent of "modernization" of the 35-year old chemicals law.  Whether you believe that is a good thing or a bad thing may depend on from what perspective you bring to the table.

Senators Lautenberg and Inhofe Staffs Hold Stakeholder Meetings on Safe Chemicals Act of 2011

Way back in April Senator Frank Lautenberg introduced his newest iteration of TSCA reform called the Safe Chemicals Act of 2011.  Last year the Democratic-controlled House took the lead in holding stakeholder meetings to fine tune the 2010 versions of the bill.  With the House controlled by Republicans this year it is left to the 87 year old Lautenberg to initiate stakeholder meetings in the Senate in an attempt to give TSCA reform at least some semblance of movement during the current Congressional term.  Since Republican Senator Inhofe had previously volunteered to work in a bipartisan manner with the Democratic Lautenberg, their staffs have begun meeting with various stakeholders to discuss key issues in the debate.

In June there were separate meetings between staffers and industry and environmental/health advocacy groups (NGOs).  Those meetings primarily dealt with the differing opinions on what should be the "safety standard."  It's unclear at this stage whose viewpoint would win out, but in the past industry has made it clear that the previously proposed standard was unworkable.  At least one more stakeholder meeting with industry representatives was held last week, this time to discuss a prioritization scheme.  A separate meeting with NGOs was due to occur, but it is unclear if it has yet happened.  NGOs had previously pushed to have minimum data sets required for all chemicals, in line with the production volume based tiered requirements currently being compiled by REACH registrants.  This is a fundamental point of difference between the two main groups of stakeholders.


Additional meetings on other key elements of Lautenberg's bill are expected to occur in coming weeks.

Whether a TSCA reform bill can even be taken up for floor discussion in this current Congress is a question mark, though it is safe to say that the likelihood is exceedingly small.  The current contentious environment and uncompromising attitudes of many in the House make passage of any TSCA reform law nearly impossible.  Which means that the EPA must work under the current 35-year old law, the same law that all stakeholders have said is in dire need of modernization.

Actress Jessica Alba joins Senator Lautenberg to Support TSCA Reform

Who knew Senator Frank Lautenberg could attract Hollywood actresses to support chemical law reform.  But this week that is exactly what the 87 year old New Jersey Senator did on May 24th, 2011.  He even posted a Twitter photo to prove it. 

Jessica Alba joined Lautenberg to support his Safe Chemicals Act of 2011, the newest version of his many attempts to reform the Toxic Substances Control Act (TSCA).  Alba said that she was supporting TSCA reform because she is pregnant and is concerned about products intended to be used by young children that may contain chemicals not adequately tested.  She also is a spokesperson for the NGO coalition, Safer Chemicals, Healthy Families.

Unfortunately, it's unlikely that Alba's support will change the reality of the current stalemate in Congress.  While in Lautenberg's Senate the Democrats still hold a tiny majority, the House is now under the control of the Republican party, who show no inclination to take any regulatory overhaul other than cutting programs and budgets for agencies such as EPA that are charged with "protecting human health and the environment."  This despite industry assertions that they believe TSCA is in need of reform, aka, modernization.  Needless to say the NGOs believe TSCA reform is needed an have already deemed Lautenberg's newest iteration of the bill to have given in to industry concerns (too much in their opinion).

So it seems all parties say they want TSCA reform, but then don't seem inclined to actually act upon it.

According to Lautenberg:

“Under current policy, EPA can only call for safety testing after evidence surfaces demonstrating a chemical is dangerous. As a result, EPA has been able to require testing for just 200 of the more than 80,000 chemicals currently registered in the United States, and has been able to ban only five dangerous substances.”