For months we've watched to see if the chemical safety bills moving through Congress would be better than current law. It’s a low bar, because the Toxic Substance Control Act of 1976, or TSCA, is widely considered the least effective environmental law on the books.
The bills that passed the House and Senate last year didn't clear the bar, but we hoped Congressional negotiators would cobble together the good parts of both bills to craft better legislation. The compromise that has now emerged – without the support of key House Democrats – has a few improvements, but still falls short in some key respects.
- First, the compromise would continue to tie the hands of the states by suspending state action while the Environmental Protection Agency studies a chemical’s safety—a process that could take three years or longer. The compromise would grandfather existing state laws and allow states to quickly act to regulate a chemical that EPA might deem a “high priority” chemical. But if a state fails to act quickly, state action would be suspended for up to three years while EPA completes its review. States have been the only cops on the chemical safety beat, regulating scores of chemicals and driving marketplace innovation. Any legislation that claims to be better than current law would permit state action until an EPA rule is final.
- Second, the compromise doesn’t require adequate funding from the chemical industry. Even the best law will be meaningless if EPA doesn’t have the resources needed to review the hundreds of dangerous chemicals already on the market. To make TSCA better than the status quo, Congress should provide enough funding to review the most dangerous chemicals in a generation – not a century. Here’s what it would take to get the job done. The compromise only provides about half of what’s needed.
- Third, the compromise fails to fully eliminate cost from EPA’s consideration of how to regulate a chemical. Both bills purport to end the current requirement to consider the cost of regulation when considering whether to regulate, but each included poison pill provisions that could keep EPA tied in legal knots. Using the same tough safety standard that is already applied to pesticides and food chemicals makes more sense, but negotiators should have at least removed vague requirements that rules be "cost-effective.”
- Fourth, the compromise allows EPA to designate some chemicals as “low hazard” when assessing a chemical for safety. Who knows what that means? The compromise fails to define “low hazard” or spell out what industry needs to prove to win this designation. Since the compromise allows the industry to dictate up to half of the chemicals EPA will assess for safety, you can bet a lot of their favorite chemicals will soon be bearing this stamp of approval.
To be fair, the compromise includes some important improvements.
- It requires EPA to determine whether a chemical is likely to meet the safety standard (albeit a weak and untested standard) before a new chemical enters the market.
- It requires EPA to consider the most vulnerable populations, such as pregnant women and children.
- It gives the EPA new tools to collect data on chemicals, but it is unclear how this new authority would extend to mixtures.
- It requires EPA to quickly review chemicals that build up in our bodies and persist in the environment, and sets deadlines for companies to comply with new EPA rules.
- It also limits the ability of companies to keep data secret by requiring confidentiality claims to be regularly substantiated, including old “trade secret” claims.
Will the new safety standard crafted by negotiators give EPA the power to restrict or ban the most dangerous chemicals? We'll see. The failure to include a bulletproof safety standard or sufficient resources, along with the uncertain effects of new restrictions on state action, could ultimately mean that fewer chemicals are regulated by a government authority, not more.
Ultimately, the right question is not whether this rewrite is better than current law. The right question is whether this version meets the expectations of a reasonable consumer.
Most consumers expect that EPA has the power to quickly review the most dangerous chemicals and that the chemicals in their cleaners are at least as safe as chemicals in their food. By that measure, this new version falls short of what consumers rightly expect.