Yesterday the U.S. Senate Committee on Environment and Public Works held a hearing titled “Strengthening Public Health Protections by Addressing Toxic Chemical Threats.” Major subjects of discussion included the Safe Chemicals Act (SCA, S. 696), which was introduced by Senator Frank Lautenberg before his death earlier this year, and the Chemical Safety Improvement Act (CSIA, S. 1009), which was co-sponsored by Senator Lautenberg and Senator Vitter, and has relatively broad bi-partisan support, as well as support from some Non-Government Organizations (NGOs). I have discussed CSIA and its reform impacts on TSCA before, and have explained Sections 1-3, Section 4, Section 5, Sections 6-9, Sections 10-13, and Sections 14-17.
I haven’t talked much about the Safe Chemical Act because frankly it doesn’t stand a good chance of getting out of committee. The bill that everyone’s been talking about lately is CSIA, which if passed would be the first bill to make major reform changes to TSCA – something that has been attempted a number of times before, but never succeeded.
The hearing was composed of three panels of witnesses from a variety of backgrounds, presenting their arguments for or against CSIA (seriously, no one is talking about SCA). If you’re a glutton for punishment, you can watch the entire six hours of the hearing here. If you do, you’ll notice that the major bone of contention (which was predicted by experts in the field of environmental law) was Section 15, which is about state pre-emption.
Senator Barbara Boxer of California, who is the committee chair, was particularly aggressive in her questioning regarding the pre-emption.
[Okay, just a quick and probably biased note, here. I love California. It’s my home state, and it’s beautiful – you’ve got to love a state that has roughly 840 miles of gorgeous coastline. But cheese and crackers on a prancing pogo stick, they take their compliance deadly seriously. In theory this is not a bad thing, but by most reasonable standards it’s agreed that California laws on Occupational Health and Safety and environmental protection are a tad extreme. I think that has a lot to do with California’s voter petition laws more than anything, but it’s also an example of people getting a kernel of information without understanding and freaking the fuck out in legislative panic. I would usually be the last person to say that, seriously – in many industries and regions I think environmental law doesn’t go far enough. But in some cases, California is crazy pants banana town.]
Ahem. Back to the hearing. I was talking about Senator Boxer’s aggressive questioning of the first two panels of witnesses. She really doesn’t like Section 15 one little bit, even though experts in law have analyzed CSIA and found that the waiver system employed would allow California (and any other state) to keep its laws as long as they are expansions on federal law. Senator Boxer even questioned the integrity of the industry witnesses, wondering if they were there to advocate for looser restrictions on business and commerce so that their respective companies would make money at the expense of public health. I’m not saying that’s not a legitimate concern in some cases – it would be something I’d wonder about a company like British Petroleum, for example. But it seems kind of rude to say it to their faces.
Maureen Gorsen, currently a partner at Alston & Bird LLP but formerly (deep breath) Deputy Secretary for Law Enforcement and Counsel for Cal/EPA and then Director of the California Department of Toxic Substances Control for Cal/EPA, was a witness on the third panel who testified that in her opinion, the waiver system described in Section 15 was a good one, and would allow California to enforce its own laws under CSIA (kind of striking a blow to Senator Boxer’s stance on the bill).
While state law pre-emption was much talked about, so was the lack of deadlines set forth in CSIA for the EPA to meet regarding its new testing and evaluation system, and a deadline to prioritize chemicals of concern for this evaluation.
CSIA is a bill of compromise, as several panel witnesses and committee members stated, and it seems like the last best chance to make meaningful reform to TSCA. I don’t doubt this for one second, considering the congressional quagmire we’re currently dealing with.