Thousands of commercial chemicals used in everyday items from baby carriers to cleaning products have never undergone federal scrutiny for safety. This is because they were on the market prior to enactment of the 37-year-old Toxic Substances Control Act (TSCA).
The fact that TSCA—the federal law that regulates commercial chemicals—in practice gives the Environmental Protection Agency little recourse against chemicals already on the market has led to an erosion in public confidence in the chemical industry’s products. But attempts to reform the law, many of which have happened over the past six years, have stalled in Congress.
This spring has brought a bill with hope for change—and support from industry, environmental activists, and both political parties. Sen. Frank R. Lautenberg (D-N.J.), a liberal, joined forces with conservative Sen. David Vitter (R-La.), the ranking minority member of the Environment & Public Works Committee, to introduce legislation (S. 1009) to modernize TSCA. The heart of the proposed Chemical Safety Improvement Act is a provision that would require EPA to conduct safety assessments of all commercial chemicals, an action that TSCA does not require. The unexpected bipartisan effort created a buzz in Washington, D.C., that a new chemical control law was a political possibility (C&EN, May 27, page 8).
Lautenberg died on June 3 (see page 6). His death could delay or halt movement on the legislation. On the other hand, it might spur lawmakers to support the bill as a memorial to the long-serving lawmaker.
TSCA Reform Bill Contains No Provision On Chemical Treaties
During the past decade, discussions on modernizing the Toxic Substances Control Act (TSCA) have generally included recommendations that legislation include language that would make the U.S. an official partner in three treaties on chemicals. Yet recently introduced bipartisan legislation to reform TSCA has no such provision.
That legislation (S. 1009) is the product of a bipartisan deal hammered out between the late Sen. Frank R. Lautenberg (D-N.J.) and Sen. David Vitter (R-La.). Although a political compromise, the bill lacks language that would move the U.S. toward implementing those three treaties, which is a red flag for some observers.
Two of the treaties are aimed at restricting and eliminating persistent organic pollutants (POPs): the global Stockholm Convention and a regional pact on POPs covering North America and Europe. The third is the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals & Pesticides in International Trade. This accord requires countries that export hazardous compounds banned or restricted elsewhere in the world and listed under the treaty to inform importing countries before sending shipments.
The U.S. has signed the three pacts but is not a full treaty partner in any of them because it lacks domestic legislation that implements the provisions of the treaties. This means U.S. negotiators have limited influence over which chemicals are added to each pact.
Baskut Tuncak, a staff attorney for the Center for International Environmental Law, says that for the U.S. to become a partner to these treaties, Congress needs to make adjustments to the federal chemical control law. In addition, he adds, lawmakers would have to pass small amendments to the pesticides act, the Federal Food Drug & Cosmetic Act, and the hazardous waste law.
Despite broad support for the bill, some environmental and health groups are criticizing S. 1009. They argue that the bill’s standard for safety could allow potentially risky chemicals to remain in commerce. In addition, they are concerned that the legislation would override state laws on chemicals, allowing only a federal regulatory system. And they fault the bill for not requiring EPA, as it conducts safety assessments, to consider the effects of chemical exposures on children, who can be vulnerable to toxic effects from certain chemicals during critical periods of development.
S. 1009 would lay out a process for those assessments and would define a safety standard against which EPA would judge commercial chemicals. Specifically, the bill would require EPA to determine whether a substance poses an unreasonable risk to human health or the environment under the manufacturer’s intended conditions of its use.
Before the agency starts to make these safety determinations, EPA would sort all commercial substances into two categories. One would cover chemicals classified as a high priority for assessment. The second category would list chemicals that the agency determines are a low priority for safety assessments.
The list of low-priority substances would include chemicals that EPA determines would likely meet the proposed safety standard under their manufacturers’ intended conditions of use. The bill would prohibit EPA from conducting safety assessments on any low-priority chemical unless the agency reclassified it as a high-priority substance.
The legislation also spells out the criteria that would land a chemical on the high-priority list. Substances that are highly toxic and that people could be highly exposed to would have to be ranked as high priority. The bill would also give EPA the option of including on this list chemicals that potentially either pose a high hazard or to which there is widespread exposure.
For chemicals on the high-priority list, EPA would have to judge whether each poses an unreasonable risk. Chemicals that EPA determines do not present an unreasonable risk would be deemed safe.
This safety standard is not designed to protect people’s health, according to the Environmental Working Group (EWG), an advocacy organization highly critical of S. 1009. It would allow chemicals that are actually unsafe to remain on the market as long as the risks they pose are “reasonable,” Thomas Cluderay, general counsel of EWG, tells C&EN. People and the environment could be exposed to substances that present a risk—albeit a reasonable one—of adverse health effects.
For any substance it deems unsafe because of an unreasonable risk, EPA would have to issue a detailed analysis. This statement would scrutinize the benefits, cost, and risks of the chemical and feasible alternatives to it given its manufacturer’s intended conditions of its uses. In addition, the analysis would examine the risks posed by the alternatives as well as the economic and social benefits and costs of the alternatives compared with those of the chemical that failed to pass the safety standard.
After issuing the analysis, EPA would be required to take regulatory action against the chemical. This would include imposing requirements for warning labels; limits on the amount of a chemical that may be manufactured, processed, or distributed; or a ban or phaseout of a substance. Under S. 1009, EPA could exempt from regulation certain chemicals posing unreasonable risk if they are needed in the interest of national security or if “the lack of availability of the chemical substances would cause significant disruption in the national economy.”
Currently, TSCA also authorizes EPA to regulate chemicals found to present an unreasonable risk. But TSCA requires EPA to select the least burdensome option for regulation, creating a legal impediment to rule-making that is nearly impossible for the agency to overcome. This was demonstrated in 1991 when a federal court struck down EPA’s heavily documented ban on asbestos products. Since then, the agency hasn’t tried to regulate commercial chemicals. To avoid this problem, the bill does not set a “least burdensome regulation” bar.
Of all the changes S. 1009 would make to TSCA, one provision seems highly likely to provoke a political fight. Once EPA places a chemical on either the high- or low-priority list, the bill would prohibit states from regulating that substance. The chemical industry sought this language to preempt the ability of states to control chemicals, preferring a national system for regulation. Currently, the industry is having fits as a growing number of state legislatures are banning sales of consumer items containing controversial chemicals, notably bisphenol A and certain flame retardants.
“Our greatest concern is this patchwork quilt of regulations in the states that can thwart commerce across state lines,” says Christopher Cathcart, president and chief executive officer of the Consumer Specialty Products Association, an industry group. Having to sell different formulations of a product in a number of states is a nightmare for companies, he tells C&EN. A robust federal system for regulating chemicals, such as proposed in S. 1009, has the potential to enhance interstate commerce, he says.
The preemption provision in the Senate bill threatens laws such as California’s voter-approved Proposition 65, says EWG’s Cluderay. That statute requires warning labels on products containing chemicals that cause cancer, birth defects, or other reproductive harm.
Cluderay also expresses concern that, unlike Lautenberg’s earlier bills, S. 1009 doesn’t specify that EPA is to ensure the most vulnerable people—notably children—are protected from the risks of chemicals.
As these and other issues begin to play out, S. 1009 appeared at the outset to have good prospects for Senate passage. Before Lautenberg died, it had nearly 20 cosponsors from both political parties. The measure now goes to the Senate Environment & Public Works Subcommittee on Superfund, Toxics & Environmental Health. The panel’s chairman, Sen. Thomas Udall (D-N.M.), and its top Republican, Sen. Michael D. Crapo of Idaho, are among the cosponsors of the measure, giving it good odds for approval in the subcommittee.
But a key player on S. 1009—Sen. Barbara Boxer (D-Calif.), who chairs the Senate Environment & Public Works Committee—hasn’t laid out plans to move on the bill. Boxer backs environmental and health causes and supported Lautenberg’s earlier efforts on TSCA reform. She has said little thus far on the bipartisan bill.
Chances that Boxer would accept the legislation as introduced are slim. Her state, California, arguably leads the nation in regulation of chemicals and is in the midst of implementing a green chemistry initiative to reduce or eliminate the use and creation of hazardous substances. She is likely to fight the industry-sought provision in S. 1009 that would preempt state regulation of chemicals.
The House of Representatives has yet to take on TSCA reform. But if S. 1009 enjoys support from industry and activist groups as well as Senate Republicans, the GOP-controlled House could feel pressure to take up this issue.