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Senate Committee on Environment and Public Works Holds Hearing on TSCA Reform

On July 31, 2013, the Senate Committee on Environment and Public Works held a hearing entitled, “Strengthening Public Health Protections by Addressing Toxic Chemical Threats.”  The hearing was called by Chairman Barbara Boxer (D-CA), who sought to discuss approaches to TSCA reform, including the Chemical Safety Improvement Act (S. 1009) introduced by Sen. David Vitter (R-La.) and the late Sen. Frank Lautenberg (D-N.J.) in May 2013.  Sen. Boxer’s opening remarks cited the merits of other recent efforts to reform the Toxic Substances Control Act (TSCA), including the Safe Chemicals Act of 2013 (S. 696), which was introduced by Sen. Boxer with Sen. Lautenberg in April 2013.  However, other Committee members from both parties noted the historical significance of S. 1009, and expressed willingness to move forward with the bipartisan compromise. 

Nineteen listed witnesses and one unannounced witness, Sen. Joe Manchin (D-W.Va.) provided testimony at the lengthy hearing.   There was general agreement among Committee members and witnesses that the current version of TSCA is outdated, and that the statute should be revised.  In addition, supporters noted that the bipartisan Lautenberg-Vitter bill was unprecedented and perhaps the “last, best chance” to reform TSCA.  In contrast, Sen. Boxer and representatives from advocacy groups challenged several elements of the proposed bill and insisted that significant changes would be necessary.

The main areas of modernization discussed at the hearing included preemption of state laws, a lack of statutory deadlines for EPA action, protection for vulnerable populations, and the potential impact of EPA’s safety determinations on the rights of plaintiffs in civil suits.

Sen. Boxer began the preemption discussion by introducing a joint letter from the Attorneys General of nine states, as well as letters from the Attorney Generals of New Mexico and New York, objecting to the “broad preemption language” in S. 1009.  The Attorneys General argued that S. 1009, as written, would preempt a number of state laws including bans on flame retardants and volatile organic compounds, as well as California’s Proposition 65 and Green Chemistry Program.  In addition, the Attorneys General stated that the bill may preclude new laws regulating chemicals of concern.   

Witnesses widely disagreed on the scope of the preemption language in S. 1009; several stated that the bill would not preclude state regulation, while others argued that it would both invalidate current laws and bar future state action.  

Committee members and witnesses also expressed concern that S. 1009 does not include deadlines for EPA action.  However, others cautioned against imposing deadlines that EPA would not be able to meet and the need to take into account limited Agency resources.

Several advocacy group witnesses called for the addition of more specific language to protect vulnerable subpopulations, such as children, pregnant women and the poor.   Supporters of S. 1009 noted that there is language requiring consideration of the vulnerability of exposed subpopulations in a safety assessment.  Sen. Boxer pointed out that such language is not included in the risk assessment section, and that it should be added.  Sen. Vitter stated it was not the intent of the bill to exclude vulnerable groups, and suggested that terms could be better defined.

The potential impact of proposed S. 1009 on state tort litigation was also discussed.  Mr. Thomas McGarity (Professor of Law, University of Texas at Austin) stated that the bill as written would be an intrusive interjection of federal law at the state level, and would essentially provide a “gift of immunity” to chemical manufacturers.  He argued that S. 1009 would require admittance of EPA’s safety determination in state tort suits.  Ms. Robin Greenwald (Weitz & Luzxenberg) echoed these concerns, stating that if EPA's safety determination is admissible in tort cases, a plaintiff in the “real world” of litigation would not be able to prove their case.  Supporters of the law have argued against this interpretation, stating that there is no language in the S. 1009 that would preempt state tort actions, and that an express savings clause may address this concern.  Legislative language has reportedly been circulated in the Senate to clarify that S. 1009 would not preempt toxic tort actions filed under state liability laws.

In addition to these issues, Sen. Cardin’s opening remarks highlighted a point later mentioned by several witnesses; he suggested that the safety standard under S. 1009 as drafted, to “ensure that no unreasonable risk of harm to human health or the environment will result from exposure to a chemical substance” be changed to “reasonable certainty of no harm.”  Supporters of S. 1009 argued that the current standard should remain unchanged.