Meaningful gains or huge setbacks?: Congress weighs two bills aimed at reforming the Toxic Substances Control Act

For years, advocates have been calling on policymakers to reform the nation’s outdated chemical safety laws. Today, two such bills stand before Congress — one that advocates say better protects the public’s health and another that advocates warn is a dangerous step backward.

Introduced in the Senate earlier this month within just days of each other, each bill takes aim at the federal Toxic Substances Control Act (TSCA), which was enacted in 1976 and hasn’t been updated since. Under TSCA, which doesn’t require chemicals undergo health impact testing before being released into the marketplace, the U.S. Environmental Protection Agency has ordered safety testing for about 250 of the 84,000 chemicals in use today and only nine have been banned or restricted. To put TSCA’s failure to protect health into better perspective, consider this: Despite the overwhelming evidence against asbestos, officials still don’t have the legal authority under TSCA to ban a known carcinogen responsible for the deaths of more than 107,000 people worldwide every year. It’s clear that the nation’s chemical safety framework needs an update; however, the two bills now before Congress would take the country down two very different paths.

“As Americans, we should absolutely expect that the products on our shelves have been tested for safety,” said Ansje Miller, eastern states director for the Center for Environmental Health. “Taking action on chemical safety is critical. We’re seeing skyrocketing rates of problems linked to chemicals, such as childhood cancers, birth defects, learning disabilities, fertility problems…we need to get a handle on this so when chemicals go on the market, we know that they’re safe.”

The two Senate reform bills are the Frank R. Lautenberg Chemical Safety for the 21st Century Act, known as S. 697, introduced by Sens. David Vitter, R-La., and Tom Udall, D-N.M., and the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act, S. 725, introduced by Sens. Barbara Boxer, D-Calif., and Ed Markey, D-Mass. The Vitter-Udall bill has attracted widespread criticism from health and safety advocates. In fact, it’s been reported that a draft form of the bill originated from the American Chemistry Council. Miller described the Vitter-Udall bill as a “giant step backward,” pointing specifically to the bill’s language that would prohibit rules and enforcement at the state level.

In response to inaction at the federal level, states have been enacting and enforcing their own chemical safety rules for years. According to a recent report from the Center for Effective Government, 38 states have established more than 250 laws or rules regulating toxic substances, and 20 state legislatures are now considering nearly 75 new chemical safety policies. Under the Vitter-Udall bill, however, states would be pre-empted from taking action on any chemical designated by EPA as “high priority” and for which the agency has begun a safety review. That safety review could take EPA seven years or longer, during which time states would be prohibited from acting — it's a period of time that advocates have dubbed the “death zone.” In essence, the Vitter-Udall bill would gut local authority and leave state officials with few options to protect their residents.

The Vitter-Udall bill would also block states from co-enforcing EPA chemical safety restrictions and make it extremely difficult for states to enact rules that are more protective than national standards. In other words, the Vitter-Udall bill would prohibit states from enforcing chemical safety rules that are identical to federal rules. That’s a big departure from the current rules under TSCA and one reason why advocates are saying the Vitter-Udall proposal is a big leap in the wrong direction. In contrast, the Boxer-Markey bill does not pre-empt state action and allows state officials to co-enforce EPA standards.

In a recent letter from attorneys general in six states, the authors said the Vitter-Udall pre-emption measures would create a void “where states would be prevented from acting to protect their citizens and the environment from those chemicals even though federal restrictions may not be in place for many years.” They wrote:

The goal of TSCA is vitally important: to establish necessary and appropriate restrictions on the manufacture and use of chemicals that present an unreasonable risk of injury to human health or the environment. We strongly support this goal, and recognize the essential contribution that TSCA could make in ensuring the adequate protection of public health and the environment from toxic chemicals. Unfortunately, in practice, TSCA has largely failed to live up to its goal and, as a result, we welcome efforts to reform this important statute.
However, we cannot support S. 697’s broad expansion of limitations on the authority of states to protect our citizens from the health and environmental risks posed by toxic chemicals within our states in the name of “reform.” In fact...we believe that, rather than bringing TSCA closer to attaining its goal, the draft legislation’s greatly expanded limitations on state action would move that goal further out of reach.

Miller explained that if the Vitter-Udall bill passed into law as currently written, enforcement of EPA's chemical safety findings at the state level would quite literally have to come directly from EPA and its regional offices. And with the tightening of federal budgets, it’s very doubtful that the agency would have the budgetary support required for such a job. Miller added that this approach would differ from nearly every other federal EPA safety standard in which states serve as co-enforcers.

“Over the past 35 years that TSCA has been broken, the states really have stepped in to fill the void,” said Miller, who noted that while the Boxer-Markey bill isn’t perfect, “it’s a step forward and a much better example of the kind of laws we need to protect public health.”

No mention of asbestos in Vitter-Udall

Both the TSCA reform bills set new time lines for chemical safety reviews, but the Boxer-Markey bill quickens the pace and allows for a more robust program, its supporters say.

The Vitter-Udall bill would require EPA to launch reviews of 25 chemicals in the first five years and add a new substance to the list every time a review is completed. In contrast, the Boxer-Markey bill would require EPA to begin reviewing 75 chemicals within the first five years and add three more chemicals to the queue upon each completed review. The Boxer-Markey bill would also direct EPA to embark on a rapid review of toxic chemicals known to be persistent and build up in a person’s body and specifically calls for a rapid review of asbestos. In a blog post from Environmental Working Group, Scott Faber, vice president of government affairs, writes of the Vitter-Udall provisions: “The EPA estimates that roughly 1,000 chemicals need immediate health and safety review. Under the (Vitter-Udall) bill, that process would take hundreds of years. …There is no deadline for implementing restrictions, phase-outs or bans of even the most toxic chemicals, which in many cases have contaminated Americans’ blood for decades.”

The Vitter-Udall bill also directs EPA to separate chemicals into two groups: high priority and low priority. In a letter to senators organized by Safer Chemicals, Healthy Families, the authors write:

High priority chemicals are reviewed against the safety standard, and if they flunk that standard, the EPA is directed to impose appropriate risk management. Low priority chemicals are not really reviewed at all. EPA makes a judgment as to whether the chemical is “likely to meet” the safety standard without conducting a new assessment. These chemicals are then treated as safe for any and all uses.

Needless to say a low priority designation will be highly coveted by any chemical company, resulting in enormous pressure on the agency to stretch the murky concept of “likely to meet” as far as possible. Yet this is the one major decision in the bill that the public cannot challenge in court. The omission is conspicuous and an invitation to abuse.

The two TSCA reform bills propose markedly different safety thresholds as well. Vitter-Udall maintains the “no unreasonable risk of harm” safety standard, while the Boxer-Markey bill proposes a “reasonable certainty of no harm” standard, which is the same standard used to evaluate food additives and the pesticides used on produce.

For Charlotte Brody, vice president for occupational and public health initiatives at the BlueGreen Alliance, a coalition of labor unions and environmental organizations, a priority concern is that the Vitter-Udall bill “takes chemical regulation off the agenda of what a state can do.” Noting that workers are often the first to experience the harmful effects of chemical exposures, Brody said Vitter-Udall could effectively pre-empt local action on various worker health issues, such as current efforts among firefighters to move away from toxic flame retardants. The pre-emption measures could have a chilling effect on the ability of workers to organize in support of safer workplaces — “the chemical industry wants to get in the way of good organizing,” Brody told me.

“Anyone paying attention can see that the Vitter-Udall bill is much better for the chemical industry and much worse for the health of the American people,” she said.

Brody said a major piece missing from the Vitter-Udall proposal is the “worse first” concept — in other words, any TSCA reform needs to prioritize chemicals that likely pose the greatest harm. The Boxer-Markey bill does address this issue, calling for a rapid review of certain chemicals and in particular, of asbestos. In contrast, the Vitter-Udall bill doesn’t mention the word “asbestos” once, said Linda Reinstein, president and CEO of the Asbestos Disease Awareness Organization.

The Boxer-Markey bill is named after Reinstein’s husband, Alan, who died in 2006 after a three-year battle with mesothelioma, a cancer caused by exposure to asbestos. Every year, more than 10,000 Americans die from asbestos-related disease, however the substance is still legal and the U.S. continues to import asbestos. The Boxer-Markey bill would expedite an asbestos review and EPA could ban it within three years.

“(The Boxer-Markey bill) would empower and ensure that the EPA could do its job and clean up the toxic mess that they’ve been left with by the chemical industry,” Reinstein told me, noting that more than 450 independent health and environmental organizations have declared their opposition to the Vitter-Udall bill. “It’s incredulous to think that someone would write a TSCA reform bill and not even mention asbestos.”

Reinstein said “meaningful” TSCA reform has to be strong enough to clean up nearly 40 years of lax chemical safety laws, it must give EPA the necessary authority to analyze and regulate chemicals, and it must give officials the flexibility to respond to future health and safety concerns. In other words, the law needs to be innovative enough to keep up with the chemical industry.

“We can’t keep operating under a law that enables the chemical industry to continue like it’s the wild, wild West,” Reinstein said.

Advocates such as Reinstein have been working to pass TSCA reform for years. So, will this year be any different — will Congress finally send a bill to the president’s desk? Miller at the Center for Environmental Health said considering the current make-up of Congress, she isn’t optimistic that the Boxer-Markey bill will succeed into law, though she said one scenario could be combining the best parts of both bills into a proposal that’s more likely to get through Congress. Reinstein said if the Vitter-Udall bill makes it the president’s desk in its current form, her organization would call for a veto. Brody said considering the current political climate, chemical safety reform might be better left until another year.

“The reform of U.S. chemical policies is too important to the health of the American people to be settled by this Congress,” Brody said. “This is not the year to be looking for a new clean water act, a new clean air act, a new workers’ rights vision, and I don’t think it’s the year to be looking for progressive TSCA reform.”

To learn more about the competing TSCA bills — there are many more differences and provisions not explored in this article — visit Safer Chemicals, Healthy Families, the Environmental Working Group, the Center for Environmental Health or the Asbestos Disease Awareness Organization. The U.S. Senate Committee on Environment and Public Works recently held a hearing on the Vitter-Udall bill — watch that webcast here.

Kim Krisberg is a freelance public health writer living in Austin, Texas, and has been writing about public health for more than a decade.

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