The two chemical safety “reform” bills introduced this week provide a clear choice for members of Congress.
One bill, introduced by Sens. Barbara Boxer, D-Calif., and Edward Markey, D-Mass., would require that chemicals be safe, set clear deadlines, provide needed resources, preserve a role for the states and provide an expedited process to ban asbestos. The chemical industry-backed bill, introduced by Sens. Tom Udall, D-N.M., and David Vitter, R-La., would not.
Here are the 10 key differences between the two bills:
- Boxer-Markey bill strengthens chemical safety reviews – Toxic industrial chemicals that end up in people’s bodies – and even contaminate babies before they are born – should be at least as safe as pesticides. The industry bill would retain the very weak “no unreasonable risk of harm” safety standard rather than the “reasonable certainty of no harm” standard applied to pesticides on produce and to food additives. By contrast, the Boxer-Markey bill applies the “reasonable certainty of no harm” standard.
- Boxer-Markey bill puts health first – The industry bill is at best ambiguous about whether the EPA must consider costs and benefits when determining whether a chemical poses a risk. While one section seems to exclude consideration of costs and benefits, the section that defines how the safety of chemicals will be regulated does require consideration of costs (Sec. 6(d)(4)). What’s more, the bill explicitly requires a cost-benefit analysis if industry wants one if EPA seeks to ban or phase out any chemical (Sec. 6(d)(5)(D)). The Boxer-Markey bill only requires that a cost-benefit analysis be part of the safety assessment if the effect on the economy is likely to exceed $100 million a year (Sec. 6(d)(6)(A)).
- Chemical spills included – The industry bill requires consideration of “reasonably foreseeable” chemical exposures, but there is no requirement for safety assessments of the exposures and risks that might result from a spill. About 10,000 tons of chemicals are spilled every year in the U.S. The industry bill also lacks explicit environmental justice protections for communities that bear the brunt of the harm from events such as last year’s West Virginia spill. The Boxer-Markey bill addresses this problem head-on by requiring consideration of “reasonably foreseeable but unintended exposure conditions from unplanned releases into the environment” –such as chemical spills.
- Boxer-Markey bill sets tough deadlines – The EPA estimates that roughly a thousand chemicals need immediate health and safety reviews. Under the industry bill, that process could take hundreds of years. It would give the EPA up to five years just to start safety reviews of 25 chemicals and would allow the agency up to seven years to assess each one. Under the Boxer bill, deadlines are much tougher. The EPA would have to start evaluating 75 chemicals within five years and would allow only up to six years for each one. In addition, the Boxer-Markey bill would require expedited safety reviews of asbestos and chemicals that persist in the environment and build up in our bodies.
- No pay-to-play for safety reviews – The industry bill would allow manufacturers to get expedited reviews of their favored chemicals for a fee, but it would not require expedited review of asbestos or extremely dangerous chemicals that persist in the environment and build up in people. There is no such pay-to-play provision in the Boxer-Markey bill. Boxer would only provide expedited consideration of asbestos and toxic chemicals that are persistent and build up in our bodies.
- Boxer-Markey bill regulates the chemical and the couch – Under the industry bill, EPA would have to clear the additional hurdle of showing that the public has “significant exposure” to a chemical in order to regulate a product that contains it, such as foam furniture laced with toxic flame retardants. The Boxer-Markey bill has no such provision.
- Boxer-Markey bill reforms judicial review – The industry bill would retain the “substantial evidence” standard for judicial review of EPA’s decisions on chemical safety– which confers an enormous advantage to industry in regulatory and judicial proceedings – rather than the “arbitrary and capricious” standard that strengthens EPA’s authority in nearly all other agency actions. In the Boxer-Markey bill, the standard for judicial review is “arbitrary and capricious,” which gives greater deference to the agency’s decisions.
- Boxer-Markey bill protects states’ power to act – Under the industry bill, states would be preempted from taking new actions to regulate any chemical the EPA has deemed “high priority” for a safety review, which could take seven years or more. What’s more, states would be blocked from adopting and co-enforcing EPA restrictions on chemicals. More importantly, states could be blocked from using their own clean air and water laws to restrict chemicals if their actions are deemed “inconsistent” with EPA’s. The industry proposal would make it effectively impossible for states get a waiver to set more protective standards than EPA’s. Even where there is no preemption, states would have to notify the EPA of proposed restrictions on a chemical. The Boxer-Markey bill preserves a role for states: No state actions would be preempted.
- Boxer-Markey bill provides necessary resources – Under the industry bill, companies would pay only minimal fees for safety reviews of new chemicals and required chemical inventory reporting. Industry would be required to generate only 25 percent of total program costs, up to a cap of $18 million. In combination with the absence of meaningful deadlines, EPA could take a century to review the thousand chemicals that need immediate attention. The Boxer-Markey bill would ensure that the chemical companies pay their fair share: Industry would be required to provide the funding necessary to do timely safety reviews.
- Asbestos – The industry bill does not mention asbestos and does not create an expedited process to review and presumably ban of a substance that still causes the deaths of more than 10,000 Americans every year. By contrast, the Boxer-Markey bill requires expedited review of asbestos and eliminates legal hurdles that blocked previous EPA efforts to ban asbestos.