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 To say that it is outdated would be the understatement of two centuries.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

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.

TSCA Chemical Reform Hearing in the US Senate Thursday February 3

TSCA reform may be dormant, but apparently not completely dead.  Since there appears to be little chance of the Republican-led House to initiate action this term, the Senate has decided to try to jump start the process again.  With this in mind, the Senate Subcommittee on Superfund, Toxics and Environmental Health will hold a hearing entitled "Assessing the Effectiveness of US Chemical Safety Laws" this Thursday, February 3, 2011. 

The subcommittee is part of the Senate Committee on Environment and Public Works chaired by Barbara Boxer.  Frank Lautenberg of New Jersey chairs the subcommittee, and as you probably remember he has been the one to introduce the various "Kid Safe" bills in recent years, including last year's Safe Chemicals Act.  Joining Lautenberg is ranking member James Inhofe, who while historically not prone to supporting environmental legislation, has indicated he is committed to work with Lautenberg to come up with a TSCA reform bill that protects human health and the environment while also not unduly inhibiting industry growth.

Witnesses at the hearing, some of whom have become familiar faces at these events, are expected to be:

Panel 1

The Honorable Steve Owens Assistant Administrator, Office of Prevention, Pesticides and Toxic Substances Environmental Protection Agency

Panel 2

Ms. Kelly M. Semrau Senior Vice President for Global Corporate Affairs, Communication, and Sustainability, SC Johnson

Mr. Steve Goldberg Vice President and Associate General Counsel BASF

Ms. Frances Beinecke President Natural Resources Defense Council

Mr. Cal Dooley President American Chemistry Council

Dean Lynn Goldman, MD, MPH Dean George Washington University School of Public Health and Health Services

The Subcommittee hearing page will include copies of testimony once given. It will begin at 10:00 am EST in the EPW Hearing Room 406 Dirksen Senate Office Building in Washington DC.  As of this writing no indication of whether the hearing will be simulcast or not, but generally this is the case.

MORE BREAKING NEWS: Tomorrow's Senate Hearing May Show Shift in TSCA Chemical Reform Strategy

As noted in my second post of the day yesterday, the Senate will hold a hearing tomorrow, February 4th, on "Current Science on Public Exposures to Toxic Chemicals." The hearing will be chaired by Senator Frank Lautenberg, who chairs the subcommittee on Superfund, Toxics and Environmental Health. All eyes have been on Lautenberg to reintroduce an updated version of the Kid Safe Chemical Act.

But maybe Lautenberg won't be the main focus. It seems that the House of Representatives may be taking the lead in drafting the new version. In the past, the House (either Henry Waxman or Hilda Solis) simply introduced the same bill that Lautenberg introduced in the Senate. And in another twist, it may be Senator Barbara Boxer, who chairs the entire EPW committee, that will be the main sponsor of the Senate version of the bill rather than Lautenberg. This seems like a good possibility given that Boxer is facing a stronger than usual reelection campaign this year from former Hewlett-Packard CEO Carly Fiorina. It's likely that being out in front of TSCA reform will be appealing to the very environmentally-conscious Californians who want to keep her in office.

So anticipation is now starting to get palatable as a TSCA reform bill approaches. Expect to see another hearing in the next few weeks in the House of Representatives, probably a combined Subcommittee/full Committee chaired by both Bobby Rush and Henry Waxman, followed shortly thereafter by reintroduction of a bill that will take portions of the Kid Safe Chemical Act but also a hefty dosing of a very different strategy. If the strategy does change, this gives even more credence to the probability that it will be Senator Boxer front and center.

Meanwhile, I'll keep posting on the hearings as they happen tomorrow.

BREAKING NEWS: Senate to Hold TSCA Chemical Control Hearing on Thursday

"Senator Frank R. Lautenberg (D-NJ), Chairman of the Subcommittee on Superfund, Toxics, and Environmental Health, will convene a hearing to examine the current science on public exposures to toxic chemicals."

So opens the announcement today on the Senate EPW web page. This is the same Senator Frank Lautenberg who is widely expected to reintroduce an updated version of his Kid Safe Chemical Act. The fact that he is holding a hearing is a strong sign that his reintroduction is following the path I noted in earlier posts here and here.

This particular hearing focuses on exposure aspects and is entitled "Current Science on Public Exposures to Toxic Chemicals." Lautenberg chairs the subcommittee on Superfund, Toxics and Environmental Health, which is part of the Committee on Environment and Public Works (chaired by Senator Boxer), which held a TSCA hearing in December.

Following opening remarks, two panels are scheduled to be participate, as follows:

Panel 1

Stephen Owens (Assistant Administrator, Office of Prevention, Pesticides and Toxic Substances Environmental Protection Agency)

Henry Falk M.D., M.P.H. (Acting Director, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry, Centers for Disease Control and Prevention)

John Stephenson (Director, Natural Resources and Environment, U.S. Government Accountability Office)

Linda Birnbaum Ph.D., D.A.B.T., A.T.S. (Director, National Institutes of Environmental Health Sciences)

Panel 2

Molly Jones Gray (Participant in a Biomonitoring Study)

Ken Cook (President, Environmental Working Group)

Charles McKay MD FACMT, FACEP, ABIM (Division of Toxicology, Department of Emergency Medicine, Hartford Hospital)

Tracey J. Woodruff PhD, MPH (Associate Professor and Director, Program on Reproductive Health and the Environment, Department of Obstetrics, Gynecology, and Reproductive Sciences, University of California, San Francisco)

I will follow the hearing and report on the testimony. Biomonitoring seems to really be getting a lot of "exposure" (pun intended) in these hearings, so it would surprising to see any TSCA reform bill that lacks some type of biomonitoring requirement...or at least the use of biomonitoring trigger the identification of a chemical of concern.

Revised Senate Climate Bill Released Today - Plus the EPA Analysis

Today the Senate Environment & Public Works Committee Chairwoman Barbara Boxer (D-CA) released a “chairman’s mark” of the climate bill she co-authored with fellow Senator John Kerry (D-MA). This revised version includes "new provisions for allocating emission allowances, providing consumer rebates, promoting the use renewable energy and fuels, addressing the use of clean-coal technologies, and encouraging certain forestry and agriculture practices to reduce greenhouse gas emissions."

In addition to the revised bill, Boxer also released an EPA analysis that shows "the Senate plan would cost no more than the House-passed cap-and-trade proposal."

Three days of legislative hearings by Boxer’s committee begin Tuesday, October 27th, which she hopes will lead to a markup of the bill in November.

As has become the norm, Republicans have threatened that they will try to block committee action on the bill based on their claims that there has not been enough time to sufficiently review the new 923-page legislative package. This is disingenuous. The draft bill has been avaiable for quite some time and this version just provides some additional information. Furthermore, this is the beginning of the process, with hearings scheduled and plenty of time for Republicans to have their staffs read the bill and provide them with analyses. There is also plenty of time for Republicans, and other Democrats, to provide their input and amendments to the bill before the final markup in November.

It's time for both parties to legislate. That means actively contributing to the development of legislation rather than staking out a politically-motivated position without making any attempt to resolve issues.

Links to the revised bill, the EPA analysis, and the House bill, along with additional analysis can be found in an article printed in the New York Times today. Other climate change related posts on this blog can be found here.

Senate Climate Change Bill Expected September 30th

It appears that Senators John Kerry and Barbara Boxer Sources will finally introduce climate change legislation on Wednesday, September 30th. Boxer is planning hearings in her Environment & Public Works Committee during the week of Oct. 5 with a markup the following week.

According to a New York Times article, the two Senators "hope will be the vehicle for broader Senate negotiations and an eventual conference with the House," acknowledging that this is "just a 'starting point' in a bid to win over moderate and conservative Democrats, as well as Republicans."

This is the beginning of what will eventually be a climate change bill coming from the Senate, which then will go to conference with the bill passed earlier this year by the House and on to President Obama for signature. The timing of the final law being in place remains pretty uncertain at this point, but while possible, it's likely it won't be ready before the global climate change meeting in Copenhagen in December. But progress is being made.