On April 28, 2015, the Senate Committee on Environment and Public Works held a hearing to consider the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697). Since then, S. 697 has gained additional backing from both Republicans and Democrats. These events are important because they demonstrate significant bipartisan support for reform of the Toxic Substances Control Act (TSCA), and suggest TSCA reform actually may be in our future.
A detailed review of the draft Senate legislation is beyond the scope of this article, but is available at www.lawbc.com (under TSCA Reform). The draft strikes a compromise on one of the most controversial issues in TSCA reform, preemption. The amendment balances the need for businesses to maintain certainty while allowing states to play an important role in protecting public health and the environment. It also allows for state co-enforcement of regulations that are consistent with the current TSCA. The amendment also requires that, for TSCA submissions to the U.S. Environmental Protection Agency (EPA), industry consider alternatives to animal testing; clarifies that state clean air and water laws are not preempted; and includes other clarifying changes regarding confidential business information, articles, and other provisions.
The Senate markup session included interesting dynamics that provide insights into the path forward. Senator Barbara Boxer (D-CA), as well as Committee Chair James Inhofe (R-OK), opened the hearing with praise for the bipartisan cooperation. With the announcement that Senators Sheldon Whitehouse (D-RI), Jeff Merkley (D-OR), and Cory Booker (D-NJ) are now co-sponsors of the bill as revised, the revised bill has a large number of Senate Democrats, including many liberal Democrats, as co-sponsors.
Boxer then went on to review what she considered significant shortcomings of the package. She described the bill as having many defects — terming some provisions ill-advised, unreasonable, and insufficient,— all of which would need to be addressed before it could gain her support. Further, she claimed to speak for many unnamed “community groups” and other interested parties that remained unable to support the legislation in its revised form, and asked that letters of opposition to the bill sharing these sentiments be placed in the record. This led her to offer a variety of amendments, none of which were accepted. Importantly, at one point, Senator Boxer remarked that she had prepared over two dozen amendments for the markup session and indicated many more may be offered if the bill moves to the floor of the Senate. The most generous assessment would be that she has indicated a hope to make further “improvements” to the legislation.
What was more unusual is that as Senator Boxer offered amendments at the markup, many Committee members who were sponsors of the new compromise supported consigning the amendments to a package they had agreed to support publicly. In other words, amendments could be offered for Members to show support for ideas and options that were left behind in the compromise package. The final package was approved by the Committee 15-5, including the bipartisan group of members who had recently co-sponsored the legislation.
As far as the impact of this on chances of success for any TSCA reform legislation, two observations are worth noting. First, if Boxer or others take an obstructionist tack by threatening to offer seemingly endless amendments as part of any Senate floor action, the Senate leadership may choose to wait to see if any better compromise can be reached. That may be the strategy for some at this point, but time on the legislative calendar this year is relatively short. Second, if the legislation is approved by both the House and Senate but needs to be resolved in a Conference Committee, Senator Boxer as Ranking Minority Member on the Committee, will likely wield significant power over the agenda, pace, and naming of the minority members of the Conference.
As of this writing, the House is scheduled to mark up in mid-May the TSCA Modernization Act, introduced by Representative John Shimkus (R-IL). Shimkus released a draft of the legislation on April 7, 2015. It is unclear whether the House leadership can be persuaded to accept the Senate version of TSCA reform, notwithstanding the bipartisan support it enjoys in the Senate. As we have noted about many of the recent maneuverings over TSCA legislation, stay tuned. TSCA reform is close, but don’t hand out any cigars yet.
LYNN BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at firstname.lastname@example.org
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006).