5/26 update: The bill passed by the House on Monday addressed the preemption problem outlined below for EPA Work Plan chemicals. The waiver provision was not addressed. A more detailed analysis of this bill will follow soon.
On Tuesday night a “final draft” of legislation to reform the Toxic Substances Control Act (TSCA) became quasi-public and a vote is expected in both houses of Congress next week. Staff from both chambers have been meeting since February to reconcile the Senate and House versions of reform that passed last year. Our coalition laid out our preferred vision for how to do that in a February 1st letter signed by 133 diverse organizations.
The release of the draft was not without controversy. Basically four parties had been involved in the discussions: the Republican and Democratic staff of the House Energy and Commerce Committee, and the Republican and Democratic staff of the Senate Environment and Public Works Committee. House Democrats did not sign off on the Tuesday draft. Congressman Tonko announced yesterday that he is opposing it. The House Rules Committee posted a revised version of the bill yesterday afternoon that under House procedures should be near final. We are told that negotiations continue. And we hope that’s true, as you’ll see below.
We have been too busy trying to improve the bill to comment on the draft in detail, but it seems timely to do so now.
The bottom line is that the bill is a significant improvement over the 2013 version that was introduced by Senator Vitter and the late Senator Lautenberg. That bill – essentially a deal between the American Chemistry Council and the Environmental Defense Fund – would have been a disaster for public health and the environment according to just about every other expert in this area. I don’t bring that up to be gratuitous but to highlight that because of a lot of hard work by people across the country as well as in Congress, the bill has changed. The new version strikes a better balance. It improves current law in many ways and, depending on implementation by EPA, should do some good. Unfortunately, it still goes backwards in a few important ways that reflect the enormous lobbying and political strength of the chemical industry.
At least as of this writing, the backward elements likely mean the broader public health community won’t be able to support the bill. If it could be further improved, it would make a difference. Our coalition members from diverse constituencies and our many activists who worked so hard on this should be proud of the impact we’ve had. We can’t exactly say, however, that the system worked.
Here is a rundown of the bill’s highlights in as plain English as I can manage for such a complex policy.
Key Issue: Empowering EPA to Take Action
Bottom line: The core of the bill is weaker than what we wanted, but it is an improvement over current law and a major improvement over the 2013 bill.
The single biggest driver for reform is that under current law, EPA faces significant legal barriers that have prevented it from taking action on even the worst chemicals, like asbestos. Part of the problem stems from the law itself and part from a 1991 court decision that struck down EPA’s attempt to ban asbestos. (Court decisions that broadly impact public policy are known as “case law.”)
The key test for reform, therefore, is whether it addresses these legal barriers. The good news is that here, at least, the bill is an improvement over current law. The strict cost-benefit standard at issue in the court case has been changed to be a “health-only” standard. The requirement that EPA choose the “least burdensome” way of regulating a chemical (also a key factor in the asbestos court case) is removed.
Furthermore, the bill requires that EPA identify any populations that are disproportionately exposed to a toxic chemical (such as workers in a particular industry) or which are disproportionately susceptible to injury from the chemical (such as small children.) Any restrictions must protect these groups and not just the “average” person. Chemicals that persist in the environment and build up in the food chain (ending up in people) are put at the front of the line and get faster treatment. These are clear improvement too. The broad public health, environmental, labor and environmental justice communities were heard on these points.
On the downside, the bill still places a significant analytical burden on the EPA to justify the restrictions that it puts in place. The burden of proof is still on the EPA, rather than the industry (the same as now). The whole process – from evaluating to imposing restrictions on the chemical – can take from 5 to 7 years.
Key Issue: State Authority or “Preemption”
Bottom line: The preemption provisions are substantially better than the 2013 bill, but still significantly weaker than current law and weaker than the House bill. They could have a real-world negative impact in the near future, especially for fire fighters who have pursued recent and pending state flame retardant bans.
The states have led the way in taking action against toxic chemicals during the many years that EPA has been hamstrung by TSCA. In fact their activity is the main thing that drove chemical companies to seek federal reforms. California is most famous for policies like Prop 65 (those little warnings about cancer and birth defects). Several other states have been leaders in this area too, including Washington, Maine, Minnesota, Vermont and Oregon. One of the only bright spots of the current law is that it allowed for this to happen. Under current law, states are allowed to restrict a chemical as they see fit unless EPA decides to impose its own restrictions. At that point, states can co-enforce the restriction, apply for a waiver, or ban the use of the chemical in the state. Because EPA never really imposed many restrictions (as per the court case above) the instance of when a state would be blocked from doing its own thing (known legally as “preemption”) was never tested.
This is an area where the new bill is significantly weaker than current law. A reasonable compromise position would have been to expand preemption to instances when EPA declares a chemical safe in exchange for the new powers described above. The House bill largely adopted this framework but it was abandoned in the final days when the chemical industry prevailed on House Republicans to adopt the Senate provisions. (Representative Tonko cited this policy change specifically.)
For background, the 2013 Senate bill staked out a position of wildly over-reaching preemption and dragged the debate far to the side of industry. Under that deal, states would have been blocked from restricting a chemical when EPA declared the chemical a high or low priority, years before EPA contemplated action (or in the case of “low priority” when they were declaring that they wouldn’t take action.) The preemption was also sweeping in its scope and states were even banned from “co-enforcing” federal restrictions, a ludicrous idea since most enforcement occurs at the state level. In short, that deal dug a very deep hole on this issue. We’ve dug most of the way out, but some people are still left down in the hole. I’ll explain why.
The final deal describes a set of state activities that are not preempted: laws dealing with air, water, waste, information collection and reporting, or which are delegated from the authority of another federal law (like OSHA). State actions that have been taken as of April 22nd of this year, will stand, regardless of what EPA does. Future state actions under laws passed before 2003 will also be exempted from preemption. This last provision is designed to accommodate California’s Prop 65. These exemptions – known legally as “grandfathering” – are all helpful from a public health standpoint.
But what about the future? The final bill includes a complicated deal struck by Senate Democrats last spring and further modified two weeks ago by an agreement between Senator Boxer and Senator Inhofe. States are blocked from taking action early in the process of EPA’s review of the chemical, which can take up to 4 years. If EPA declares the chemical unsafe, states are allowed to step back in and impose restrictions while the EPA considers its own restrictions. When EPA finishes its own restrictions, the preemption takes effect again. Senator Boxer recently secured a grace period for states, whereby if they act in the 12 months following the EPA’s proposal to review the chemical, they are exempted from the early preemption. They have to apply for a waiver.
Hard to follow? Don’t blame yourself! The complicated provision reflects the chemical industry’s undue influence. So much of the drama of this debate has been caused by trying to work around it. The industry made this unprecedented early preemption a “must have.” The Boxer deal is helpful from a practical standpoint but it has two flaws: It did not include the EPA “Work Plan” chemicals, 90 of the worst chemicals already identified by the agency, and it requires a waiver process which will waste time and resources. Recent and pending state policies – particularly around toxic flame retardant chemicals – are still highly likely to be blocked by the bill. That means millions of people, and fire fighters in particular, will be exposed to these chemicals for years in those states. In the interest of political realism – and because of the clear public health impacts – we have focused on getting those chemicals included in the Boxer fix in these final days and removing the need for a waiver to make the grace period administratively easier.
Key Issue: Imported Products
Bottom line: This is a bad provision that will undermine the credibility of the whole system if/when a toxic chemical in an imported product causes a new scandal.
One of the benefits of the House bill was that it avoided a collection of rollbacks to EPA authority that were present in the Senate bill. The most important of these was to an obscure but important authority that relates to imported products. Unfortunately, the final draft bill includes this provision. Since so many products are imported, it’s a big deal.
The provision makes it very difficult compared to current law for EPA to require notification when a chemical is getting into the country in an imported product. It’s important because EPA chemical evaluations will necessarily be a snapshot in time. EPA will look at a chemical and how it is used and decide if restrictions are necessary. It might decide, for example, that a chemical is OK when used as part of an industrial process, but poses too much risk when used in the home. But how will EPA know if the use patterns of the chemical change in the future? The answer is a mechanism called a Significant New Use Rule or SNUR. EPA can require notification if the production of the chemical increases or if it is present in a consumer product including an imported product. It can then decide if the restrictions need to be updated to reflect the new reality and preserve public safety.
The political push to rollback this authority is driven by a consortium of companies, led by the auto industry but also including Intel and Boeing. They were all affected a few years ago when EPA restricted a toxic flame retardant called PBDE. The agency required notification about imported products (called “articles” under the law) and the companies did not like the hassle of being swept into a TSCA requirement.
In the final days of the TSCA discussion, this provision resurfaced as “the auto thing.” Literally, that’s what people are calling it. The problem is it applies to all imported products: toys, shoes, clothes, etc. In the interest of political reality and trying to ensure as much public health protection as possible, we’ve asked if the damage from this provision could at least be limited to automobiles, maybe aviation parts, if needed. Do we really want to make it harder for EPA to track down chemicals in the vast category of products that come in from overseas?
Key Issue: Will More Chemicals Be Tested?
Bottom line: The final draft bill expands EPA’s testing authority in important ways though it falls short of what is required by Europe or in other federal programs that relate to the safety of substances.
The first major problem with current law is that EPA can’t act against even a very toxic chemical. The next major problem is that there is not even basic toxicity information for most chemicals. In other words, we don’t know whether most chemicals are toxic or not. Unlike with pesticides or drugs, chemicals are not required to have even a minimum amount of information to get on or stay on the market. EPA’s ability to require testing is limited to the administratively clunky mechanism of a formal rulemaking. That process requires proposed and final regulations, notice and comment, and it can be litigated. EPA has used it 200 times since 1976, while there are 84,000 or so chemicals on the market. Clearly, we want toxicity testing to be something that is more routine for any chemical that is being released into the environment, our homes and our workplaces.
The chemical industry drew a line in the sand against minimum information requirements like those imposed in Europe. The final draft bill gives EPA the ability to require testing on a case-by-case basis through the administratively less complicated provision of an “order.” However, it limits this expanded authority to a set of scenarios that are inadequate. For example, it can order testing if needed to decided whether to prioritize a chemical, to inform the formal safety evaluations described in the first section, or in response to a request by another agency.
But what about cases like the 2014 spill in West Virginia, when thousands of people were exposed to a chemical with barely any publicly available health and safety data? Or what about the case that is increasingly common, whereby major players in industry are moving away from a toxic chemical and want to know for sure whether the replacement is safer? What about when scientists discover something strange is going on with a wildlife population, like the intersex fish in the Potomac, and they ask EPA to require testing on a set of compounds that could be the culprit? The House bill allowed for a testing order based on the straightforward finding that the chemical “may present” an unreasonable risk. This order authority was excluded from the Tuesday draft, but appears to be included now. It makes a big difference.
Key Issue: Will More Information Be Made Public?
Bottom line: More information should be made public as a result of the bill, but the identity-shielding provisions will continue to play a role in environmental scandals, like the recent one around the DuPont compound known as PFOA.
One of the issues that drove reform is the abuse of provisions for Confidential Business Information (CBI.) Everyone, including industry, agreed that this was a problem but solving it has proved tricky. The bill cleans up some of the abuses, but it technically goes backwards from current law on the issue of chemical “identity.”
Identity in this context refers to scientific name of the chemical compound, ie. methylhexylyah-yah. Companies argue that when it comes to chemicals the identity is the technology and if you make it public, you are giving away their technology for free. For that reason, the EPA evolved a practice of masking the identity of the chemical even in the context of a health and safety study. Current law says health and safety studies cannot be hidden from the public. The practice of masking identity is well-entrenched but not supported by the law.
There are broader problems with CBI, where companies routinely declare information CBI even though there is not a legitimate business reason. There is a backlog of CBI claims that have never been vetted. The good news is the bill requires the vetting of these claims going forward, and also re-substantiation of past claims. It also allows the sharing of CBI with state governments and health providers or emergency responders dealing with a potential injury. The bad news is that the chemical identity and that of mixtures are explicitly made eligible to be hidden if justified to EPA, which is a weakening of the current law, if not the current practice.
There are other issues in the legislation. EPA will have the ability to raise fees to fund its chemicals reviews for example. Controversial science guidance has mostly been pared back. The provisions for prioritizing chemicals appear to be more or less OK. Provisions for new chemicals, which previously took away EPA authority, now, at least on paper, should enhance it. However, the five “key issues” described above are the “big ticket” items. If these last improvements identified in this blog can be included it will make a difference to public health and the environment.