In a rare showing of bipartisanship, the Senate hopes to repair a hopelessly broken system. Action Alert!
Sens. Frank R. Lautenberg (D-NJ), who died this week at the age of 89, and David Vitter (R-LA) recently introduced legislation to address toxic chemicals in household and manufacturing products. S 1009, the Chemical Safety Improvement Act (CSIA), will try to plug the holes in the thirty-seven year old Toxic Substances Control Act (TSCA), one of the few pieces of legislation that has never been amended.
While this new bill is a big step in the right direction, we have some concerns that we request Congress address.
Chemicals are used to produce 96% of manufactured consumer goods. Many of them are toxic. In 1976 Congress passed the TSCA to regulate the introduction of new or already existing chemicals. However, the TSCA does not separate chemicals into categories of toxic and non-toxic—it simply prohibits the manufacture or importation of chemicals that are not on the TSCA Inventory.
Under the TSCA the government must, for the most part, prove that a chemical is unsafe before it can be removed from market, instead of requiring manufacturers to prove that their chemicals are safe in the first place. In fact, manufacturers often do not provide data to the EPA regarding toxicity, so it’s hard for EPA to have information on the safety of the chemical or show “unreasonable risk.” EPA has been able to require the testing of about 200 chemicals, and has taken action against only five chemicals or chemical classes, even though there are now roughly 85,000 chemicals on the market.
In other words, the current law is broken. Because these chemicals are mostly new to nature, one cannot assume they are safe for humans or the environment without studies.
This new bill will require safety evaluations on all existing chemicals, which will be labeled either high or low priority in terms of risk to human health. For high-risk chemicals, EPA must conduct further evaluations. If a chemical is determined to be unsafe, EPA is then empowered to take action—from a labeling requirement to a phase-out of the chemical to an outright ban.
However, the bill does not create mandatory deadlines for completing safety assessments and determinations. While the justification is that the review periods for different chemicals vary, and the EPA is more likely to abide by their own established deadlines, in reality it is far too easy for the government to needlessly drag out the review of chemicals.
Under the Chemical Safety Improvement Act, new chemicals entering the market must undergo a safety assessment, and EPA will have the authority to prohibit unsafe chemicals from being sold. Unfortunately, the bill does not (though it should) require determination of the aggregate and cumulative exposure to chemicals—something earlier TSCA reform bills did consider. Aggregate exposure looks at one’s exposure to a chemical from different sources and different routes, and cumulative looks at simultaneous exposure to different chemicals that affect the body through same modes of action.
The agency will also be empowered to get the necessary health and safety information from chemical manufacturers, while at the same time balancing manufacturers’ needs for proprietary information. Under the bill, EPA will take special care to properly evaluate the risk to vulnerable populations like children and pregnant women.
The bill also allows EPA to exempt chemicals from risk management under certain circumstances (e.g., national security, economic disruption). But the EPA does not have any burden of proof to justify their exemption. We would ask that the bill require EPA to show “clear and convincing evidence” that the chemical falls under an exemption.
If the federal government makes a law and there is already a state law on the books on the same issue, the federal law preempts the state law. With the TSCA, a state can petition the EPA for an exemption of TSCA’s preemptive effect so long as three conditions are met: the state requirement does not violate federal law; the state requirement provides a “significantly higher degree of protection from such risk than the requirement under federal law”; and interstate commerce is not unduly burdened.
Our greatest concern about CSIA, the new bill, is that the preemption language is more inclusive and carries a broader standard. Under CSIA, no state may require additional information on a chemical or additional development of test data when companies have to submit similar information to the EPA. Moreover, states cannot create new restrictions or even enforce existing restrictions on the manufacture, processing, distribution, or use of a chemical after EPA completes its safety determination for the chemical. Arguably, this could even limit a state’s ability to require chemical warning labels on product labels—companies could argue that this is part of “distribution.” A state can request a waiver from these limitations if the state law does not burden interstate commerce, and there are compelling state or local conditions, and the requirement is supported by “the best available science and is supported by the weight of the evidence.” This is an extraordinarily difficult bar to meet.
Instead, the new preemption language should be struck from the bill so it reverts to the preemption language under current law.
Besides its strong bipartisan support, the bill is enjoying the unique position of having the support of both industry trade associations and a number of public advocacy organizations. That’s a good thing—we like the bill in general, but we hope our concerns about the bill will be addressed.
Toxic chemicals can be found in a tremendous number of everyday products from BPA in food containers to flame retardants on our furniture, which can spread to the dust on the floor that children can ingest when playing. Flame retardant chemicals have been linked to lower IQ and the development of diabetes. Toxic chemicals can cause a number of health problems, and exposure to chemicals in the womb can have long-lasting affects on the child’s life. This bill will go a long way toward getting rid of, or at least identifying, the toxic chemicals that citizens may be encountering on a daily basis.
Action Alert! Write to your senators and ask them to support the Lautenberg bill with amendments that address our serious concerns. Tell them that you work hard to keep your family safe from dangerous chemicals, but this bill is desperately needed to help ban the truly toxic ones. Please contact your senators immediately!
