Beveridge & Diamond
 

Senate TSCA Hearing Closes Out 111th Congress’ Focus on TSCA

Beveridge & Diamond, P.C., November 14, 2010

On October 26, 2010, Senator Lautenberg (D-NJ), Chairman of the Senate Environment and Public Works Committee’s Subcommittee on Superfund, Toxics, and Environmental Health, led a field hearing at the University of Medicine and Dentistry of New Jersey in Newark entitled “Toxic Chemicals and Children’s Environmental Health.”1  This hearing likely was the final step in what has been a two-year focus of both the House and Senate on overhaul of the Toxic Substances Control Act (TSCA).  The prospects for TSCA legislation in the upcoming 112th Congress are uncertain in light of the November mid-term election results.

Earlier Developments

The 111th Congress began its consideration of TSCA early with a hearing on February 26, 2009 held by the House Energy and Commerce Committee’s Subcommittee on Commerce, Trade, and Consumer Protection, chaired by Representative Bobby Rush (D-IL).2  Additional hearings by that Subcommittee followed on November 17, 2009,3 and March 4, 2010.4  In the Senate, the Environment and Public Works Committee and Senator Lautenberg’s Subcommittee on Superfund, Toxics and Environmental Health held a hearing on December 2, 2009,5 with the Subcommittee holding additional hearings on February 4, 2010,6 and on March 9, 2010.7

On April 15, 2010, Senator Lautenberg introduced TSCA legislation, the “Safe Chemicals Act of 2010,” S. 3209, that would fundamentally overhaul TSCA.8  His Subcommittee held no hearings on the bill, however, until the field hearing on October 26, six months later.

Meanwhile, a discussion draft of the House counterpart to Senator Lautenberg’s bill, the Toxic Chemicals Safety Act of 2010, was released the same day as his bill, on April 15, 2010.  Representative Rush then held a series of stakeholder sessions before introducing the bill, H.R. 5820, on July 22, 2010.  A hearing followed on July 29, 2010, at which industry representatives expressed concern about the bill.9  No further hearings were held.

Senate TSCA Hearing

The October 26, 2010 field hearing reiterated prior arguments for TSCA reform.  Its timing late in the legislative year suggests an effort to position the topic for the next Congress. 

Senator Lautenberg’s introductory statement recited a now-familiar litany of flaws in the current TSCA law, relating to EPA’s difficulties in obtaining information and imposing restrictions on chemicals.10  Senator Lautenberg also stated that substantial fractions of childhood cancers, neurological disorders, and asthma are associated with hazardous chemicals, and cited an earlier Senate hearing on a Centers for Disease Control and Prevention report on biomonitoring.11  While acknowledging that industry groups have not endorsed the Safe Chemicals Act, he characterized them as having agreed that TSCA reform legislation is “a worthwhile venture” and as “not as hostile” to the idea of TSCA reform as in the past.  TSCA reform, he argued, would benefit rather than harm the economy and the important chemicals sector by, among other things, restoring public trust in the industry. 

Senator Inhofe (R-OK), the ranking member on the Subcommittee, was not present at the hearing.  He submitted a written statement that could be construed as generally supportive of TSCA reform, saying “assessing the environmental impact on children deserves additional, specialized interest.”  He expressed a commitment “to develop legislative solutions to the extent they are needed and according to what the best available science is telling us.”  

The field hearing’s first panel consisted of EPA Administrator Lisa Jackson, who has made chemicals management a top priority for her agency.  Administrator Jackson’s testimony reiterated previous statements about limitations of TSCA and about special risks faced by children exposed to chemicals.  A large part of the testimony summarized EPA’s “Essential Principles for Reform of Chemicals Management Legislation,” released in fall 2009.12  She also highlighted suspected ties between toxic chemicals in the environment and breast cancer.  

When asked how long a TSCA reform law might take to implement and to impact environmental health endpoints, Administrator Jackson acknowledged that it would take “a while” to actually review all chemicals in commerce.  She added that impacts on chemical safety would be felt more quickly.  Administrator Jackson also acknowledged that many of the concerns driving mistrust of chemicals, such as the presence of chemicals such as bisphenol A in food-contact materials, are outside EPA’s jurisdiction.  (She did not expand on the relevance of these jurisdictional issues to the introduced legislation.)  In response to a question from Senator Lautenberg regarding the balance between public disclosure of information and protection of manufacturers’ intellectual property interests and competitiveness, Administrator Jackson acknowledged the industry concern but generally supported greater disclosure requirements. 

The second panel featured four speakers, all also supportive of TSCA reform.  The first was CNN medical correspondent Dr. Sanjay Gupta, who spearheaded an extensive investigative report on “Toxic America” earlier this year.13  Dr. Gupta used the examples of DDT and lead to illustrate the importance of knowing about the health effects of chemicals.  He criticized what he called the “innocent until proven guilty” approach to chemicals management under current law, comparing it unfavorably to the Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) in the European Union.  Dr. Gupta also stated that, according to his investigation, a precautionary principle would promote rather than stifle innovation. 

Dr. Lisa Huguenin, an environmental scientist and mother of child with autism and an immune system disorder, offered emotional testimony about her worries about exposure to chemicals. 

Dr. Steven Marcus, MD, a professor at the New Jersey Medical School, discussed his experiences with treating lead poisoning and with broader medical toxicology.  He argued that we live in “a soup of environmental chemicals” whose cumulative effects should be detrmined, and urged additional support for pediatric toxicology and Poison Control Centers. 

Finally, Dr. Frederica Perera, Director of the Columbia University Center for Children’s Environmental Health, reported on studies on developmental effects from children’s prenatal exposures to phthalates, BPA, and polybrominated diphenyl ethers. 

What Next?

As a result of the November 2 mid-term election, in the 112th Congress Republicans will have control of the House of Representatives, by a margin of approximately 242 to 193, and will have increased strength in the Senate, where there will be some 51 Democrats, 2 independents who caucus with them, and 47 Republicans.  Chairmanship of the House Energy and Commerce Committee will pass from Representative Henry Waxman (D-CA), a strong supporter of TSCA reform, to a Republican to be selected in the coming days. 

TSCA reform will not be among the House Republicans’ initial priorities.  House Republicans are likely to focus on health care, appropriations, and oversight, rather than enactment of major environmental legislation.  The lead environmental issue will once again be climate change, with TSCA waiting its turn. 

Still, TSCA reform legislation does have some chance of enactment in the 112th Congress.  Republicans may need to point to accomplishments on environmental issues beyond limitations on EPA’s greenhouse gas rulemaking activity.  The key question is whether industry stakeholders, who advocated for TSCA legislation in 2009, will maintain that position in a very different Congress.  Those who felt that the 2010 legislation went too far may push for a more moderate compromise that still results in significant changes to TSCA.

For more information, please contact Mark Duvall at mduvall@bdlaw.com or Alexandra Wyatt at awyatt@bdlaw.com.

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1 U.S. Senate Committee on Environment and Public Works, Subcommittee on Superfund, Toxics, and Environmental Health, Field Hearing: “Toxic Chemicals and Children’s Environmental Health” (Oct. 26, 2010), available at http://www.epw.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=c9fbef98-ee5d-2a2d-65cd-21bcd5313f8f (including witness testimony and archived webcast).

2 See Beveridge & Diamond, P.C., First TSCA Reform Congressional Hearing of 2009 Held February 26, Mar. 3, 2009, available at http://www.bdlaw.com/news-506.html.

3 See Beveridge & Diamond, P.C., Congressional Hearing Builds Momentum for TSCA Amendments, Nov. 20, 2009, available at http://www.bdlaw.com/news-730.html.

4 U.S. House Committee on Energy and Commerce, Subcommittee on Commerce, Trade, and Consumer Protection, Hearing:  TSCA and Persistent, Bioaccumulative, and Toxic Chemicals: Examining Domestic and International Actions” (Mar. 2, 2010), available at http://energycommerce.house.gov/index.php?option=com_content&view=article&id=1915:tsca-and-persistent-bioaccumulative-and-toxic-chemicals-examining-domestic-and-international-actions&catid=129:subcommittee-on-commerce-trade-and-consumer-protection&Itemid=70.

5 See Beveridge & Diamond, P.C., Senate Oversight Hearing on TSCA Highlights Familiar Concerns, New Science, Dec. 4, 2009, available at http://www.bdlaw.com/news-747.html.

6 U.S. Senate Committee on Environment and Public Works, Subcommittee on Superfund, Toxics, and Environmental Health, Hearing: “Current Science on Public Exposures to Toxic Chemicals” (Mar. 4, 2010), available at http://epw.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=8a722315-802a-23ad-4e9a-b8477139e63f.

7 U.S. Senate Committee on Environment and Public Works, Subcommittee on Superfund, Toxics, and Environmental Health, Hearing: “Business Perspectives on Reforming U.S. Chemical Safety Laws” (Mar. 4, 2010), available at http://epw.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=29c259ec-802a-23ad-4b7b-6087cdaf2ceb.

8 See Beveridge & Diamond, P.C., “Proposed Legislation Would Overhaul TSCA” (Apr. 23, 2010), available at http://www.bdlaw.com/news-852.html.

9 See Beveridge & Diamond, P.C., “House Discusses Potential Dramatic Changes to U.S. Chemicals Law” (Aug. 5, 2010), available at http://www.bdlaw.com/news-938.html.

10 See, e.g., Beveridge & Diamond, P.C., “Senate Oversight Hearing on TSCA Highlights Familiar Concerns, New Science: (Dec. 4, 2009), available at http://www.bdlaw.com/news-747.html.

11 See Beveridge & Diamond, P.C., “TSCA Reform Efforts Turn to Biomonitoring Studies for Support” (Feb. 12, 2010), available at http://www.bdlaw.com/news-809.html.

12 EPA, “Essential Principles for Reform of Chemicals Management Legislation” (Sep. 29, 2009), available at http://www.epa.gov/oppt/existingchemicals/pubs/principles.html.

13 CNN, Specials: Toxic America, available at http://www.cnn.com/SPECIALS/2010/toxic.america/.  The special report first aired over two nights:  “Toxic Towns” on June 2, 2010, and “Toxic Childhood” on June 3, 2010.