Dueling Chemical Safety Bills Elicit Calls for True Reform, Not Industry Giveaway

Two measures aimed at reforming the nation's chemical safety laws were introduced in the U.S. Congress this week, one of them lauded by public health advocates as potentially transformative and the other denounced by the same groups as favoring the very industry it is meant to regulate.

One bill, introduced Thursday by Sens. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.), "would correct major weaknesses of the 1976 Toxic Substances Control Act," according to an Environmental Working Group press release. "It would ensure that all chemicals be proven to pose a 'reasonable certainty of no harm'--the same standard required for pesticides on produce and food chemicals."

According to its sponsors, the Boxer-Markey bill--dubbed the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act--would require:

• the Environmental Protection Agency to use a stronger standard to judge whether chemicals are safe;
• EPA to review more chemicals more quickly;
• swift action on cancer-causing asbestos;
• EPA to consider the threat a chemical substance poses to drinking water supplies, including from nearby storage, when prioritizing substances for review.

It would also preserve the authority of states to restrict the use of chemicals and enforce federal restrictions under state law.

"We applaud Senator Boxer and Senator Markey for a meaningful proposal that puts the public and the environment before the interests of chemical companies while respecting state authority to better protect their citizens," Earthjustice said in a statement following the bill's introduction.

The competing legislation from Sens. David Vitter (R-La.) and Tom Udall (D-N.M.) is also meant to overhaul the 39-year-old TSCA, which has been criticized as weak, outdated, and overly lenient to chemical companies.

But environmental, public health, and labor groups say the Vitter-Udall bill isn't much of an improvement. Critics charge that the measure would:

• fail to ensure that chemicals are safe;
• fail to set meaningful deadlines for safety reviews;
• fail to provide EPA with adequate resources to monitor and regulate dangerous substances;
• deny states the ability to protect public health and the environment.

"[W]hile the Udall-Vitter bill improves current law by providing a health-based safety standard that must consider the impact of chemicals on vulnerable communities such as those living near a factory or pregnant women, it significantly undercuts this improvement with an overreaching preemption clause," women's health expert Elizabeth Arndorfer wrote at RH Reality Check on Friday.

Arndorfer was referring to a provision that would restrict state governments from taking new actions to regulate any chemical the EPA has deemed "high priority" for a safety review--even though federal regulations could take up to seven years to go into effect. She continued:

The Udall-Vitter legislation departs significantly--and harmfully--from current preemption in TSCA. Under this proposed bill, states would not be able to take action after a chemical has been designated by the EPA as "high priority." This means that before the EPA has taken any action to restrict or limit the use of a high priority chemical, states would be blocked from taking action on it. This would create what the California Attorney General called a "regulatory void" in an open letter regarding the Udall-Vitter bill. And this is bad for reproductive health.

Given the timelines outlined in the legislation, it could take the EPA at least five-to-seven years to complete a safety assessment of a chemical. Since the states' hands are tied during this time, the chemical industry will have every incentive to stall EPA action through litigation and other shenanigans. Years could tick by with no action, with continued exposure to dangerous chemicals and with continued potential harm to reproductive health, fetal development, and fertility. And this is for "high priority" chemicals--chemicals that we have good reason to believe are harmful to our health.

In a blog post, EWG's vice president of government affairs, Scott Faber, outlined the top 10 problems with what he called an "industry-supported" bill.

Among the most egregious aspects of the Vitter-Udall bill is its lax deadlines, Faber wrote:

The EPA estimates that roughly 1,000 chemicals need immediate health and safety review. Under the industry bill, that process would take hundreds of years. It would require only that EPA start reviews of 25 chemicals within five years and would allow the agency up to seven years to review each substance. 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 Boxer-Markey proposal, on the other hand, "sets tough deadlines," Faber and EWG Stabile Law Fellow Melanie Benesh explained on Thursday.

Another major difference between the two bills is their approach to asbestos. "The industry bill does not mention asbestos and does not create an expedited process to review and presumably ban a substance that still causes the deaths of more than 10,000 Americans every year," Faber and Benesh point out. "By contrast, the Boxer-Markey bill requires expedited review of asbestos and eliminates legal hurdles that blocked previous EPA efforts to ban asbestos."

The Senate Environment and Public Works Committee plans to hold a hearing on the Vitter-Udall legislation on Wednesday, March 18.

Andy Igrejas, national campaign director for the Washington, D.C.-based Safer Chemicals, Healthy Families coalition, said the Vitter-Udall bill "takes a step or two forward, but 2 and a half or 3 steps back."

"Senators need to at least excise the sketchy bits from the bill and restore states' existing authority under TSCA to bring the Vitter-Udall legislation to the point where it does no harm and maybe some good," Igrejas wrote in a blog post. "After that, consider increasing the fees, jacking up the schedule, and expediting action on the known worst chemicals, like those that build up in the food chain. Then we'd be getting into genuine moderate achievement territory."