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Congress is struggling to rewrite a law regulating industrial chemicals.

Congress is struggling to rewrite a law regulating industrial chemicals.

Carly Lesser & Art Drauglis/Flickr (CC BY-SA 2.0)

U.S. Senate makes progress on chemical regulation reform, but obstacles await

A bipartisan effort to revamp how the U.S. government tests and regulates toxic industrial chemicals reached a new milestone last week when a Senate panel easily advanced a measure to overhaul the Toxic Substances Control Act (TSCA). Although the bill gained broader support among Democrats after sponsors revised an early draft, it still has a long way to go. Some liberal Democrats and environmental groups continue to oppose the measure, and a lengthy legislative and procedural battle lies ahead.

Meanwhile, the House of Representatives is working on its own version of the bill, with an initial vote tentatively set for 14 May.

On 28 April, the Senate Environment and Public Works Committee took arguably the biggest step toward TSCA reform in decades, voting 15 to 5 to advance S. 697 to the Senate floor. Sponsored by senators Tom Udall (D–NM) and David Vitter (R–LA), the measure aims to give the Environmental Protection Agency (EPA) more power to restrict the thousands of industrial chemicals in U.S. commerce, and to order new safety data from makers, while striving to craft a more nationally uniform regulatory system.

The vote came a day after the bill’s sponsors made changes to the original measure to resolve some concerns from environmental groups and Democrats. The most notable changes scale back how much the measure would restrict state power to issue new chemical regulations. “Senator Udall and I took the concerns presented by many colleagues and stakeholders and set out to make the bill even stronger,” Vitter said before the vote. He called the bill “a marked improvement over current law” that represents a “significant positive compromise.”

But Senator Barbara Boxer (D–CA), who has opposed S. 697 since its introduction in March, said the newly altered bill was still too weak, and many environmental and health groups agreed. Boxer, the committee’s top Democrat, suggested she will use procedural tactics to stall the bill and will try to amend it on the Senate floor. “I will stand on my feet until I can’t stand on my feet anymore,” Boxer said at the committee meeting, “because I refuse to bend in the face of serious problems in a bill that is said to fix a broken law.”

Toxic tug of war

The continuing tug of war over S. 697 underscores the long-fraught history of TSCA reform. Democrats, Republicans, public interest groups, and the chemical industry all say that TSCA needs fixing, but lawmakers have repeatedly failed to resolve differences among stakeholders on how to do it. S. 697 may represent the best shot yet of reforming TSCA, in the view of the measure’s supporters. The bill now boasts 11 Democrats and 11 Republicans as co-sponsors, as well as support from chemical industry groups and at least one major environmental group, the Environmental Defense Fund.

The bill would knock down some key legal hurdles that have long hampered EPA’s powers to regulate substances. No longer would EPA have to consider costs in assessing chemicals’ safety or pick the “least burdensome” method of regulating them. Also, EPA would no longer have to show that a chemical is potentially risky in order for the agency to request new safety data from companies. And in most cases, new chemicals couldn't go on the market until EPA could show that they probably meet the law's safety requirements. (Under current law, new chemicals go on the market in 90 days unless EPA can prove they are unsafe.)

The revised version of the bill that cleared the committee would also:

  • Let states issue and enforce regulations on chemical uses that EPA has already regulated, as long as the state rules don’t duplicate any of EPA’s fines on companies;

  • Slightly scale back an earlier provision that would have blocked states’ from taking new actions on “high-priority” chemicals that EPA is planning to review;

  • Make it easier for EPA to designate chemicals as “high priority” for review;

  • Require tougher regulations on chemicals that accumulate and persist for long periods in the environment or body; and

  • Toughen requirements for chemicalmakers and EPA to consider nonanimal forms of testing.

The current bill also revises earlier provisions that critics worried would have made it tougher for EPA to regulate products (or “articles”) that contain a known toxic chemical, as well as murky language that might have inadvertently required EPA to keep considering costs in chemical assessments and blocked certain state air and water pollution laws.

With these changes, three more environment committee Democrats backed the bill: Sheldon Whitehouse (D–RI), Cory Booker (D–NJ), and Jeff Merkley (D–OR).

But other Democrats—including Boxer and Senator Ed Markey (D–MA), who are sponsoring a far tougher TSCA reform bill—are standing fast in opposition. “The bottom line is, what we are voting on now is a much better bill than what we started with,” said Senator Bernie Sanders (I–VT), an independent who caucuses with Democrats and opposes S. 697. “But we still have a long way to go.”

Boxer and other Democrats who still oppose S. 697 want all state preemption removed. “Let’s not have Big Brother tell the states they have no right to protect their citizens,” Boxer said. They also would like language banning asbestos and setting firm deadlines for companies to comply with regulations. But Boxer and her allies failed to attract enough votes to amend the bill with some of these provisions. Boxer said that once Senate floor debate begins on S. 697, she would likely offer “a tremendous number of amendments” to toughen it up.

Udall acknowledged the bill contains provisions he doesn’t like. “This isn’t a perfect bill, but it’s a good one,” Udall said in a 1 May conference call with small business representatives, reporters, and government officials, adding: “We can’t afford to wait any longer. You, your children, and our communities can’t afford to wait for a perfect bill.”

Senate floor debate could begin sometime in June, Udall said, after which it may take to 6 weeks to vote on amendments. After that, the timeline is unclear. The House’s TSCA reform draft makes far fewer changes to existing law, he noted. If both bodies were to pass their measures, they would then need to negotiate a final version, a process that could take months or longer. And the White House, which wields presidential veto power, has not yet taken a stance on either measure. Still, Udall said he still hoped that lawmakers would finish TSCA reform this year.