ICYMI: Former EPA, California Officials Tout Lautenberg-Vitter TSCA Reform Bill as "Breakthrough"
September 18, 2013
Earlier this year, U.S. Sen. David Vitter (R-La.), top Republican on the Environment and Public Works Committee, coauthored and introduced the "Chemical Safety Improvement Act of 2013" with the late Sen. Frank Lautenberg (D-N.J.). The legislation will reform the outdated Toxic Substances Reform Control Act (TSCA). Click here to read more.
By Charles M. Auer | Sept. 17, 2013, 11:59 a.m.
One thing I learned during my years of public service is that no piece of legislation is perfect. However, in the current debate over modernizing and strengthening our decades-old chemical regulation law, the status quo is not an option. Not when we finally have the opportunity to pass a bipartisan bill that will ensure the safety of chemicals that Americans are exposed to in their everyday lives.
The Toxic Substances Control Act, which oversees the regulation of chemicals in the United States, was signed into law in 1976 and is sorely outdated. I saw this firsthand in my more than three decades working at the Environmental Protection Agency, first as a staff chemist and eventually as the director of the Office of Pollution Prevention and Toxics. After working with TSCA for nearly the entire time the law has been in force, it's clear that there are serious gaps and limitations that need to be addressed.
This isn't necessarily a new or unique conclusion. In fact, there is wide recognition that the law should be reformed. While there were high hopes within the EPA and elsewhere that TSCA would establish an effective program to identify and regulate potentially dangerous chemicals, the nearly four decades since have shown that the current law is not up to the task. The law provided broad authority but vague priorities to guide the EPA's work. This combination never came together in a way that could yield an agreed set of program goals that would then be pursued to test and manage the risks of the thousands of chemicals in commerce.
TSCA stands as the only major federal environmental statute that has never been updated. That's why so many groups stepped forward to support the late Sen. Frank Lautenberg and Sen. David Vitter when they brokered a bipartisan compromise with the Chemical Safety Improvement Act to improve the effectiveness of federal chemical regulation.
The CSIA is good news for American families and the environment because it gives the EPA the mandate and the authority needed to conduct safety assessments of chemicals, identify potential risks, and take action to protect children, families and the environment from exposure to chemicals that present unreasonable risks of harm. This is particularly meaningful when you consider that when TSCA was enacted, thousands of chemicals were allowed to remain in use even though they had not undergone any evaluation, and TSCA compounded the problem by making it difficult to implement an orderly process to review and regulate these "grandfathered" chemicals.
The CSIA would require, as a matter of U.S. policy and law, that all chemicals, including the grandfathered ones already in use, be systematically evaluated for safety.
The legislation will also make it much easier for the EPA to obtain the test data needed to assess health and environmental effects. CSIA deals with what I consider to be the central failing of TSCA by giving the EPA streamlined authority to require industry to conduct chemical testing using any of several regulatory approaches.
My hope is that the CSIA will help restore confidence in the safety of chemicals among the American public and allow the United States to regain its international leadership role on the critical matter of chemical assessment and management. We can realize both these goals by creating a new gold standard for America and the world. The CSIA will help to accomplish this.
Bipartisan compromise will strengthen chemical safety laws
In a rare display of bipartisanship in Washington, more than two dozen Democrat and Republican Senators have come together to support new legislation, the Chemical Safety Improvement Act (CSIA), to update our nation¹s sorely outdated chemical safety law the Toxic Substances Control Act (TSCA).
With 20 years of experience in environmental law and unique experience at the state level as a former director of the California Department of Toxic Substances Control, I am one of the many supporters who view the CSIA as a historic opportunity for reform. It is rare for Congress to act in a bipartisan manner, rarer still on environmental issues. Yet, the principal co-sponsors of the legislation, the late Sen. Frank R. Lautenberg (D-N.J.) and Sen. David Vitter (R-La.), have developed legislation that would grant the federal EPA new authorities to review nearly every chemical currently in use.
Despite this remarkable breakthrough after years of stalemate, opponents have emerged saying that the bill doesn¹t go far enough. Among their arguments is the claim that the bill would weaken existing state regulations by broadly preempting state chemical programs and laws. California¹s chemical laws, which implement the Green Chemistry Initiative, a program I helped develop and launch in 2006, are often cited as the most extreme examples.
California¹s chemical safety law and other state laws regulating chemicals around the country are meant to protect state citizens from potentially harmful toxics and encourage the adoption of new, more sustainable chemistries. The reason many states got into the business of chemical regulation was not necessarily a desire to layer onto existing federal chemical regulatory programs, but out of concern over the lack of effectiveness of the federal oversight of chemicals under TSCA. As a former state chemical regulator, I believe that all states, including those states that have passed chemical laws of their own (even California) should welcome the prospect of a far more effective federal regulatory program.
Furthermore, claims about the legislation¹s broad preemption of state laws have been vastly overstated and misunderstood. The CSIA will not result in a sweeping overhaul of any state programs. It will not affect state laws pertaining to clean air, water, waste treatment or disposal. It will, where the EPA acts on a specific chemical, allow the EPA decision to take precedence in order to create a coherent unified national approach to managing chemicals. In fact, all existing state laws, including California¹s chemical safety laws will remain intact.
The legislation recognizes the important role of states, giving their views and concerns priority in EPA decision-making and providing multiple opportunities for states to engage in EPA¹s prioritization, safety assessment and safety determination for chemicals under review. The CSIA also provides EPA with the authority to grant a state a waiver from preemption if circumstances warrant it. In practice, with state and federal agencies working in coordination, the added resources and expertise will accelerate the quantity of chemicals undergoing review, the quality of those reviews and ultimately improve chemical and consumer product safety across the country.
This is good news for all citizens in all states, whether they have existing chemical laws or not. A strong national program will enhance state programs, and allow states to focus their often-strained resources on state priorities. The federal government can bring critically needed resources and expertise to the highly complicated and expensive process of chemical risk assessment and regulation. And families in every state can be more confident that the products they use every day are safe for their children and their communities.
Gorsen is an environmental attorney and partner at Alston & Bird, based in Sacramento. She has served as the deputy secretary of Law Enforcement and Counsel for the California Environmental Protection Agency (Cal/EPA), general counsel of the California Natural Resources Agency, and as the director of the California Department of Toxic Substances Control.