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TSCA Reform – Bump in the Road or Brick Wall?

I recently had the opportunity to witness first-hand a portion of the world’s greatest deliberative body at work—it was both inspiring and frustrating.

August 12, 2013
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I recently had the opportunity to witness first-hand a portion of the world’s greatest deliberative body at work—it was both inspiring and frustrating. The event was the Senate Environment and Public Works Committee’s marathon hearing on the recently introduced Toxic Substances Control Act (TSCA) reform legislation, the Chemical Safety Reform Act of 2013 (CSIA) (S.1009).

My inspiration came from the fact that after more than five years of considerable wrangling and finger-pointing, there was actually bipartisan TSCA reform legislation being considered (12 Democrats and 13 Republicans, if you happen to be counting). This is after decades of argument over the inadequacies of chemical regulations!

In addition, it is a bill whose original co-sponsor, the late Senator Frank Lautenberg, was acknowledged by both sides of the aisle as the champion of TSCA reform. Finally, it is a bill that had gotten enough attention that even some House members were starting to educate themselves about the basics of TSCA in their own committee hearings, possibly in anticipation of taking up their own reform measure.

These are all positive signs – even laudable steps when you consider the timeframe in which no legislation had made it past any committee.

My frustration stems from the fact that, while all these positive signs exist, it was clear from the hearing that getting any TSCA reform legislation out of the Senate is still going to be a long row to hoe. From the hearing’s outset, the committee chairwoman, Senator Barbara Boxer (D-CA), made it clear that she is calling the shots when it comes to deciding whether there is a serviceable bill. After outlining what she alone feels are the problems with the first bi-partisan piece of TSCA legislation, she said, “If we don’t fix these problems, we’re not going to have a bill.”

Senator Boxer has several problems with the bill, but it was clear that number one with a bullet is her belief that S.1009 could pre-empt state authority to regulate or restrict chemicals used or sold within their borders once the Environmental Protection Agency makes a determination on those substances. In particular, Senator Boxer mentioned repeatedly that she believed the present language undermined her own state’s Proposition 65 regulation. Several panel witnesses spoke passionately about how Proposition 65 had made a positive impact on removing dangerous products from the market, with the unstated implication of what a disaster it would be if TSCA reform took that away.

Senator David Vitter (R-LA), CSIA’s other original co-sponsor, repeatedly discounted that there was any attempt being made to destroy the work of Proposition 65 or neuter other state laws addressing chemical enforcement. He went on to say that he was already working with Senator Tom Udall (D-NM) on a manager’s amendment that would address preemption questions and make it crystal clear that gutting a state’s right to mange chemicals within their own borders was never the intention of the bill.

The day-long, 19-person hearing ended with Senator Boxer promising to put TSCA reform on the fast track once all the details were worked out, but acknowledging that “the devil was in the details.”

Let’s hope there’s an exorcist out there somewhere, or else S. 1009 will unfortunately be going absolutely nowhere. 

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