Sens. Tom Udall and David Vitter took the wraps off their chemical safety bill on Tuesday and laid out their plan to try to break the logjam and update the 40-year-old rules governing EPA’s oversight.
The bill that would update the 1976 Toxic Substances Control Act has already drawn seven Democratic and seven Republican cosponsors, a strong start for the measure that’s been mired in controversy.
The list of original cosponsors is "a very strong statement in terms of our ability to move forward and pass this legislation,” Vitter told reporters, adding that he is “very confident" the bill could get more than 60 Senate votes and majority support in the House.
Udall called it a "good solid bipartisan bill" that was written with input from EPA, trial lawyers, chemical companies and public health and environmental groups that all say an update of the law is long overdue.
"Not everybody got what they wanted," he said.
Udall’s comments appeared to be designed to counter the criticism from opponents of the bill, such as Sen. Barbara Boxer (D-Calif.), who said in a Friday New York Times article that "it looks like the chemical industry itself is writing" the legislation.
The bill would mandate that EPA base decisions on chemicals only on the risk to public health and the environment and not on costs to companies. It also defines special protection for pregnant women, children, elderly and chemical workers that are particularly vulnerable to chemicals, and includes at least 15 deadlines for EPA to review and act on chemicals.
Additionally, it would impose user fees on manufacturers and processors of chemicals that would specifically finance EPA safety reviews and other chemical oversight.
Among the cosponsors are Environment and Public Works Chairman Sen. Jim Inhofe, panel Democrat Delaware Sen. Tom Carper, and one member of Senate Democratic leadership, Michigan Sen. Debbie Stabenow.
"Bipartisanship is hard to come by in the Senate these days, especially on issues that affect the environment," Carper said. "But in this case, Democrats and Republicans are coming together to improve a failed law that doesn't work for consumers and doesn’t work for businesses."
The other Democratic cosponsors are Sens. Chris Coons (Del.), Joe Manchin (W.Va.), Joe Donnelly (Ind.), Martin Heinrich (N.M.) and Heidi Heitkamp (N.D.). The Republican cosponsors are Sens. Roy Blunt (Mo.), John Boozman (Ark.), Mike Crapo (Idaho), Shelley Moore Capito (W.Va.), John Hoeven (N.D.) and Bill Cassidy (La.).
The bill will be discussed at a TSCA hearing at Inhofe's panel on March 18. A markup hasn’t been scheduled, and the timing of the effort may become a factor given Vitter's gubernatorial candidacy this year.
Vitter, who has been one of EPA's sharpest critics on Capitol Hill, said the bill was a compromise that expanded the agency’s reach as it created regulatory certainty for companies.
"Republicans agree to give EPA a whole lot new additional authority, which we're not in the habit of being excited about, to state the obvious," Vitter said. "In exchange, that leads to … a common rulebook."
That includes preempting toxics' oversight in California and other states, a major concern of Boxer, the ranking member of the EPW committee.
"Legal experts who have examined the Udall-Vitter-Inhofe toxics bill at my request tell me this bill is worse than current law," she said in a statement. "This means there will be fewer protections from the most dangerous chemicals for communities and families."
The bill also "devastates the role of states in protecting their people, and the sponsors declined to ensure asbestos and children’s cancer clusters are addressed," she said.
The California attorney general’s office echoed those concerns last weeks, citing its "significant objection" to the Udall and Vitter deal in a letter to Boxer last week.
Vitter and Udall said their bill has "the right balance" on preemption. It would grandfather in state action until this year and exempt action on low-priority chemicals from federal authority.
But critics say it would actually preempt state action quicker than current law and significantly restrict state enforcement.
"Firefighters, nurses, parents of kids with learning disabilities and cancer survivors all still oppose this legislation," said Andy Igrejas, director of Safer Chemicals, Healthy Families. "In its current form it would not make a big dent in the problem of toxic chemical exposure and would even do some harm by restraining state governments."
Some of the same environmentalists and their congressional champions who are fighting to preserve EPA domain over carbon emissions and expanding the Clean Water Act say the TSCA bill needs to be strengthened to make sure EPA is carefully scrutinizing chemicals.
A "lax" EPA "could use the bill to give the green light to deregulate hundreds of controversial chemicals with minimal review," said Daniel Rosenberg, a senior attorney at NRDC, and the Udall-Vitter plan would also "block state action even when EPA had done nothing to protect the public."
Still, Rosenberg said the bill "has improved notably" since the original version offered by Vitter and the late Sen. Frank Lautenberg in 2013, and the current version’s "failings would be easy to remedy and we continue to work to get this bill to a point where it would be acceptable."
Among the bill's defenders are the Environmental Defense Fund and the American Chemistry Council, which see it as a breakthrough toward getting a TSCA deal through Congress.
"With lawmakers coming together from both sides of the aisle, this is the best chance in a generation for us to move past an obsolete and badly broken law to provide strong protections for all Americans," EDF President Fred Krupp said. "Congress cannot afford to let this historic opportunity slip from its grasp."
ACC President and CEO Cal Dooley echoed the bill "is the best and only opportunity to achieve a pragmatic, bipartisan solution to reform chemical regulation."
And the position of the American Association for Justice, which represents trial lawyers and is considered a particularly important constituency to get Democrats on board with the bill, has shifted from opposition to neutrality on the latest bill.
An AAJ spokeswoman last week said that while the group "does not oppose the current draft as it is written, we do not believe this goes far enough to fully protect American families from the dangerous chemicals in our drinking water, children’s toys and consumer products."
It may be the most far-reaching environmental law that few understand, and it touches on nearly every product in the household.
"This is one of the most complicated, complex laws you're ever to run into," Udall said.
And the political maneuvering behind the scenes has added intrigue.
TSCA reform became a legacy cause for Lautenberg, who Udall and Vitter named their bill after. Tuesday’s bill is a significantly updated version of an original deal Lautenberg and Vitter introduced in May 2013, only two weeks before the New Jersey Democrat died. Udall — who is the top Democrat on the Interior and EPA spending subcommittee this Congress — took over as the lead Democratic partner to Vitter.
Lautenberg's widow Bonnie, who will testify at the March 18 hearing, said in a statement that the Udall and Vitter plan "builds important improvements upon the solid foundation Frank laid with Sen. Vitter in 2013," and that senators should "step up and help finish the job of ensuring our families are protected from toxic chemicals."
But Boxer remains a major obstacle for the measure, and she previewed The New York Times article last week before it was published. That article also questioned whether Udall was too cozy with the industry, which had donated to his campaign and aired a TV ad praising Udall during his recent campaign.
Udall pushed back Tuesday, saying he doesn't have any control of such TV ads and that "never has a political contribution made an impact on what I do on public policy, and that's just plain and clear and that’s the way it is."
He again emphasized the scope of the interests and groups that he and Vitter reached out to, saying "the proof is in the product."
Udall and Vitter also said they have visited with senior House Energy and Commerce panelists in both parties, including Energy and Environment Subcommittee Chairman Rep. John Shimkus (R-Ill.) and full committee ranking member Rep. Frank Pallone (D-N.J.).
"There's a great deal of interest" in collaborating on "something bipartisan," Udall said.
He and Vitter said the fundamentals of their bill are sound but the details can change. Carper sent a letter Tuesday to Udall, Vitter and Inhofe saying he’d like the bill to better “give states an appropriate role" and "ensure states are not prevented from action on risky chemicals until EPA sets a national standard."
Boxer and Sen. Ed Markey (D-Mass.) are working on their own version.
There is little expectation that the California Democrat will ever sign on to a Udall and Vitter bill.
"Look, Sen. Boxer quite frankly has always been an outlier on this bill and this issue," Vitter said.