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Beyond the Monsanto Clause: What Else Does the House Chemical Bill Get Wrong?

Thursday, March 24, 2016

 

We wrote earlier this month about a troubling provision that was slipped at the last minute into the House version of the industry-backed chemical regulation bill that would update the weak 1976 Toxic Substances Control Act.

The so-called “Monsanto clause” is certainly disturbing, but it’s hardly the only problematic aspect of the legislation. Here are a few others:

  • May not preserve a role for the states. In the absence of federal action, states have for decades led the way on chemical safety. The House bill could significantly limit the states’ role by preventing them from taking action on a chemical once the federal government issues its own regulation. Even more problematically, the bill does not define or limit the scope of this restriction. That means that federal action on formaldehyde in flooring, for instance, could block states from regulating the chemical in cleaning products.
  • Not enough funding. To adequately assess chemicals’ safety and issue appropriate regulations, the Environmental Protection Agency needs resources. One of the biggest problems with the House bill is that instead of imposing industry fees to fund EPA’s chemical safety program, it leaves it entirely at the mercy of congressional appropriations. There should be dedicated industry fees to ensure that EPA has the resources it needs to evaluate and regulate the nearly one thousand chemicals in commerce that it says raise safety concerns.  
  • Industry fast lane. The House bill doesn’t require industry to pay for EPA’s work on chemicals the agency wants to evaluate, but companies do have to pay for safety reviews that industry requests. What’s more, there is no cap on the number of these industry-requested assessments. Without limits and without other funding, it’s possible that EPA could never get around to reviewing the safety of chemicals that its own experts consider priorities. Industry shouldn’t have its own unchecked fast lane.
  • Secret chemicals. There must be limits on what companies can keep secret about their chemicals. The House bill allows companies to hide the identity of a chemical evaluated in health and safety studies, rendering those studies useless. The legislation also lacks clear guidance on what a company needs to show before it can ask for trade secret protection, and it does not require EPA to revisit past trade secret claims. Furthermore, EPA would only be able to reevaluate a trade secret claim once every 10 years, even if it has safety concerns before then.  
  • Access to data. EPA needs access to company testing data to determine whether chemicals are safe. Under current law, EPA has to show that a chemical poses an “unreasonable risk” before it can ask chemical companies to supply more data. Of course, it’s hard for EPA to show there’s a risk without getting the data first. While the Senate bill eliminates this unworkable catch-22, the House bill does not.
  • Replacement parts. Both the House and the Senate bills would exempt chemicals in replacement parts from EPA’s regulations, allowing companies to offload existing stock before complying with the new rules. While the Senate bill limits this exception to parts that have already been manufactured, the House bill allows companies to keep on producing any replacement parts that have already been designed. This creates a big loophole and a potentially indefinite way for companies to get around regulations. 

 

 

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