Critics say U.S. law has done a poor job of regulating the many chemicals that enter the market each year.

Critics say U.S. law has done a poor job of regulating the many chemicals that enter the market each year.

Horia Varlan/Flickr (CC BY 2.0)

Congress takes another crack at reforming chemical testing system

The latest effort to overhaul widely unpopular U.S. rules governing industrial chemicals got off to a feisty start in Congress this week, as the Senate began debating a bipartisan compromise bill to reform the Toxic Substances Control Act (TSCA). The law—which hasn’t changed much in 40 years—has drawn persistent criticism from both industry and environmentalists for creating a bureaucratic morass. Congress has repeatedly struggled to find a fix acceptable to all parties, but some lawmakers are hoping that the new reform effort will finally bridge the gap.

“There has never been a bipartisan effort with this much potential,” said Senator Tom Udall (D–NM) at an 18 March Senate hearing on the new reform bill (S. 697), which has both Democratic and Republican backing. But Udall and his allies are drawing heavy fire from two top Senate Democrats, who argue that the bipartisan bill wouldn’t go far enough to protect health and have offered what they say is a better alternative. The bipartisan bill “is actually worse than the existing statute,” said Senator Barbara Boxer (D–CA), a lead author of the alternative bill and top Democrat on the Senate Environment and Public Works Committee.

Under TSCA, the U.S. Environmental Protection Agency (EPA) is tasked with assessing the potential health and environmental risks posed by thousands of substances used in industrial applications and consumer products, and then regulating them. But lawmakers and stakeholders across the spectrum agree that TSCA hasn’t worked; for a variety of reasons, EPA has reviewed just a tiny fraction of the substances already in commerce and has only rarely pulled an existing chemical from the market.

Past congressional attempts to overhaul TSCA, often spearheaded by the late Senator Frank Lautenberg (D–NJ), failed to garner enough support. Now, the compromise bill, named for Lautenberg and written by Udall and Senator David Vitter (R–LA), aims to set a higher safety bar for industry to introduce new chemicals and seeks to make it easier for EPA to restrict existing chemicals it has judged to be risky.

The Udall-Vitter measure has already drawn support from at least 19 senators (Republicans and centrist Democrats), chemical industry groups, and at least one major environmental group (the Environmental Defense Fund). “There were times when negotiations broke down, but we always came back to the table because we shared a fundamental, bipartisan goal to cut through the noise and finally reform this broken law,” Udall said.

Now, under TSCA, substances can stay on or enter the market unless EPA shows that they pose an “unreasonable risk” of harm. But EPA has just 90 days to show that a new chemical is an unreasonable risk and thus prevent it from entering the market, even if the agency doesn’t have enough data to make a judgment. Additionally, the burden on EPA to show that a substance poses an “unreasonable risk” has proved difficult for the agency, TSCA critics say, because it must include the costs of restricting or banning a chemical in deciding what is “unreasonable.”

Under the Udall-Vitter bill, EPA would determine a substance’s risk based only on scientific evidence of its health impact, not the cost of regulating. The agency would also no longer need to use the “least burdensome” method of regulation. EPA could also require companies to generate additional safety data, and the bill tells EPA to take extra measures to protect pregnant women, infants, and the elderly.

For new chemicals, the bill would, in most cases, shift the burden to industry to show that their substances aren’t unreasonably risky. EPA would also have to start assessing—and thus could potentially regulate—existing substances that pose the greatest concern, starting with 25 in the first 7 years. And EPA could use fees collected from industry to pay for up to 25% of the costs of the reviews.

Other provisions encourage, but do not explicitly require, EPA to research and pursue the use of alternatives to animal testing. Finally, the bill would clamp down on industry efforts to keep safety data secret by declaring them confidential business information. That change would allow EPA to more easily share chemical information with states, doctors, and first responders.

But Udall and Vitter’s approach is too weak, argue Boxer, Senator Ed Markey (D–MA), and a host of environmental and health groups and state officials. “I’ve never seen, in all the years I’ve been here, such opposition to legislation,” Boxer said at the hearing. The opponents are backing a different bill, S. 725, written by Boxer and Markey. It would, among other things, require chemicals to meet the much tougher test of “reasonable certainty of no harm,” immediately ban asbestos, require EPA to review more existing chemicals in a given time period, and allow states to keep issuing regulations as tough, or tougher than, EPA’s.

One big problem with the Udall-Vitter bill, the critics argue, is that it would weaken chemical regulation by state governments, which have often developed stronger rules than the federal government. Under the Udall-Vitter bill, existing state regulations—including any substances now regulated under California’s Proposition 65 program—would stay on the books. To satisfy industry’s desire for nationally uniform standards, however, the bill would bar states from taking future actions on a substance if EPA designates it as a “high priority” substance for review—even if the agency hasn’t yet issued a regulation for it.

The Udall-Vitter bill also would bar states from “co-enforcement,” or enacting their own regulations that are as tough as EPA’s. That restriction on states would take useful “cops off the beat” and create a “death zone” in which high-priority chemicals would face neither tough state nor federal regulation while EPA reviews them, Boxer and other critics argue. A number of state attorneys general echoed these concerns in a 16 March letter.

It’s also unwise to cut states out of chemical regulation while EPA faces continual threats to its budget, testified Ken Cook, president of the Washington, D.C.–based Environmental Working Group, at the hearing. The new approach “would actually weaken [TSCA]—a law so broken that EPA could not even ban asbestos,” Cook argued in his written testimony.

Boxer has said that she could potentially support the Udall-Vitter bill if certain changes are made to more closely reflect her measure’s provisions. And the Obama administration, which previously put forth its own general TSCA reform principles, hasn’t taken a stance. But EPA toxics chief James Jones, responding to questions at the 18 March hearing, agreed that the bill seemed to satisfy most of those principles. On the hotly debated issue of state preemption, however, Jones was more coy. He said the administration “consciously did not include a principle on preemption, even though we understood how critical it was ultimately to a bill.”

At the hearing, Vitter took a veiled shot at Boxer’s legislation, arguing that only S. 697 has bipartisan support and is thus “the only realistic shot we have at reforming a very broken and dysfunctional system.” Meanwhile, Udall agreed that S. 697 could be further improved; an 18 March editorial in The New York Times offered “good suggestions” for further potential changes, he said. The editorial suggests that lawmakers remove the bill's language that weakens the states' powers to regulate and that they require EPA to quickly assess more chemicals than the measure currently would require.

It’s not clear whether the Udall-Vitter bill will be able to overcome the acrimony that has sunk previous TSCA reform efforts. But the bill’s backers seem intent on making history. “Let’s not wait another 40 years to finally move forward,” Udall urged his colleagues at the hearing.