Making sense of chemical safety reform

Last year, both the House and Senate approved bills to reform the Toxic Substances Control Act.

Both bills make some improvements over the current law. But neither bill provides the protections the public deserves.  Now comes the hard part: Taking the best, and most protective, provisions from the House and Senate bills and coming up with the strongest possible final legislation. 

But another, scarier, outcome also is possible.  Senate and House negotiators may agree on a bill that combines the two bills’ least protective provisions, something some in the chemical industry would prefer.

The point of reform is to give the Environmental Protection Agency the authority it has lacked ever since the original TSCA was passed in 1976. As a consequence, only about 200 of the tens of thousands of chemicals in commerce  have been tested for safety.

What would a strong final TSCA reform look like?  Here are some of Union of Concerned Scientists' priorities:

Ensure that the EPA can use the best available science to inform its work. It is crucial that the final bill does not tell the EPA how to use science to assess and regulate toxic chemicals. The EPA ought to operate transparently, and explain the scientific basis for its methods, but legislating scientific methods will block innovation that can produce better results. The House bill is less prescriptive.

Protect the EPA’s work from court challenges. The EPA must focus on public health and safety when assessing chemicals., Costs should not be the priority that opens regulations to legal challenges. The Senate bill is clearer and more protective.

Protect vulnerable populations. A final bill must protect those most exposed to the chemicals, and those most physically susceptible to their harms, including workers, children, fence-line communities, pregnant women, and the elderly. The Senate bill is more specific.

Give the EPA the power to protect the public without going through unnecessary procedural hurdles.  The EPA has an existing regulatory framework in place.  What it has lacked is the authority to impose meaningful restrictions. The House bill does not increase these hurdles.

Address all PBTs. Persistent, bioaccumulative and toxic chemicals are very dangerous.  The EPA should have the authority to regulate all PBTs that pose significant hazards. While the House process for acting on PBTs is more efficient, the House exempts certain PBTs from regulation. 

Impose enforceable deadlines on the EPA to regulate chemicals. Deadlines are the only way to guarantee that toxic chemicals are identified and regulated in a timely manner. The Senate bill includes clearer deadlines.

Give states the widest latitude to continue to protect their residents from unsafe chemicals.  It is necessary to take elements from both House and Senate bills to reach this goal.  The House does not pre-empt states until the EPA issues a final rule, a big plus.  But the Senate bill clearly exempts all state laws whose purpose is to gather information or monitor chemicals, and permits   states to regulate new uses of existing chemicals that the EPA has not included in its safety assessment and determinations, or new chemicals for risks or uses that the EPA has not identified. 

Both bills would not pre-empt state laws passed before August 2015. But the Senate bill more clearly exempts California’s Proposition 65, which requires labeling of products that cause cancer, birth defects or reproductive harms, and the Massachusetts Toxic Use Reduction Act.

Put EPA priorities first. Both House and Senate bills permit companies to ask the EPA to do a chemical evaluation, provided they pay for it. But company requests must be capped, so that the EPA’s priorities always take precedence. The Senate bill caps requests.

Provide resources for the EPA to do its work. The Senate bill authorizes additional federal funds for EPA, and imposes industry fees to pay for up to 25 percent of the agency’s estimated $100 million annual TSCA budget.

Give the EPA the power to require companies to provide the data it needs to determine whether a chemical is safe or not.  A final bill must give the EPA the power to ask a company about a new chemical or a new use for an existing chemical without having to justify its need for the information. Neither bill is adequate. 

Place limits on confidentiality. Overall, the Senate bill has stronger language addressing the use of confidential business information. The House bill would allow chemical identity to be kept secret, even in the context of health and safety studies.

Do not create any loopholes for new chemicals to escape EPA scrutiny. The Senate bill could permit a company to claim that a new chemical actually was a slightly modified version of an existing chemical.  This could lead to dangerous industry efforts to evade regulation. The House bill lacks this harmful provision.

Congress has an opportunity to improve chemical safety in a meaningful way.  This legislation, the first major chemical safety law to be passed in more than a generation, could make a positive difference. But that is possible only if House and Senate negotiators keep in mind the needs of the American public, and not the pleadings of high-priced industry lobbyists.

Rosenberg is director of the Center for Science and Democracy.

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