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Reworked Bill Would Still Lead to More Toxic Chemicals in Commerce

Monday, May 5, 2014

A revised draft of legislation to update the failed federal law that regulates toxic chemicals, which was released by Republican Rep. John Shimkus of Illinois following stiff criticism of his initial proposal, makes only cosmetic changes to his first draft.

The congressman’s revisions to his “Chemicals in Commerce Act” fail to tackle the significant concerns raised by other members of Congress, the public health community and many others. Shimkus is chairman of the Energy and Commerce Committee’s Environment and the Economy Subcommittee that has jurisdiction over the bill.

At a recent hearing on the revised draft before the subcommittee, Henry Waxman of California, the ranking Democrat of the Energy and Commerce Committee, summed up the criticism:

But the public health groups remain in strong opposition to the draft. They say the draft won’t protect public health and the environment and in fact remains weaker than even the status quo of chemical regulation.

As my colleague Thomas Cluderay has written, there were significant flaws in Shimkus’ initial proposal, which was designed to update the 1976 Toxic Substances Control Act, which all sides consider a failure. The flaws include a weak standard for assessing whether a chemical is safe, broad preemptions of state laws and regulations, and requirements to balance costs and benefits and choose the least burdensome approach when deciding whether to restrict or ban a hazardous chemical. The revised draft, like Shimkus’ initial proposal, also gives the chemical industry broad discretion to maintain a cloak of secrecy on information about its products that could affect public health and the environment.

Despite some changes to the language of the first draft, these problems remain. The “unreasonable risk” safety standard that has hamstrung the Environmental Protection Agency since 1976 would be changed to “significant risk,” but it’s unclear what this would mean in practice for the agency’s reviews of chemical safety. The new draft also still requires the EPA to weigh the costs and benefits of managing any potential risks. And it would forbid EPA from restricting or banning a chemical solely to protect public health and would instead still require the agency to take action in a way that is “least burdensome” for the manufacturer. The cost-benefit and “least burdensome” provisions are in the failed current law and are a large part of the reason that EPA has been able to ban or restrict only five chemicals since Congress passed it nearly four decades ago.

One change that Shimkus called an important step to strengthen the draft is that existing state laws would no longer be wiped off the books when EPA classified a chemical as “low priority.”  This is indeed an improvement, but states would still be barred from imposing new restrictions on a chemical that EPA had put on the low priority list. This would hamstring states despite the likelihood that EPA would never actually review the safety of most low priority chemicals. Many of them are the very same chemicals that were deemed safe without a meaningful assessment when President Gerald Ford signed the current law in 1976. It makes no sense to block states from taking action to protect their citizens if EPA has never decided whether a chemical is safe.

Broad secrecy provisions also remain in Shimkus’ new draft. It would effectively forbid EPA from disclosing the identity of a chemical included in health and safety data submitted to the agency if the manufacturer claims that the chemical’s identity is a trade secret. This severely undermines the ability of outside researchers to reproduce or expand on previous studies and forces them to dedicate resources just to try to figure out what chemical is the focus of the relevant health and safety data. This provision would overturn an existing EPA policy to generally deny confidentially claims for chemicals included in health and safety data.

Jim Jones, the assistant administrator in charge of EPA’s toxic chemical program, raised other concerns about the latest draft as well, saying it would weaken EPA’s authority to deal with new chemicals. He also called out its broad preemption language and weak safety standard

Despite claims by Shimkus and the chemical industry that the new draft would represent major progress, the proposed Chemicals in Commerce Act would still do nothing to protect consumers from potentially dangerous chemicals or give EPA the tools it needs to assess their safety and take action. The bill purports to make significant improvements to current law but its language will only ensure that Americans will continue to be exposed to more, not fewer, potentially harmful toxic chemicals.

 

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