The new bill to reform our federal toxic substance control system drastically rolls back and weakens our protection from dangerous chemicals in everyday products. Get the full story:
By Mike Belliveau, Executive Director, Environmental Health Strategy Center
Where’d you get those cool shoes with the toxic glues, those shiny shirts with the phthalate-laden prints? They were made in China, most likely. The United States imports more consumer goods than any other country.
So imagine my shock when I read the new federal chemical safety reform legislation introduced last week by Senators Vitter and Udall (S.697). The bill would provide amnesty to toxic products that illegally cross the U.S. border!
That’s right, the bill weakens border security for imported products containing chemicals banned in the U.S. That’s just one of its radical rollbacks in protection from dangerous chemicals in everyday products. We oppose this bill because of how it weakens current law. In contrast, corporate interests enthusiastically support this legislation. Some even gush about a “once in a generation” chance to improve chemical safety.
How can a chemical safety law not ensure safer products? It’s consumer worry about product safety that’s driven the decade-long debate over fixing the broken Toxic Substances Control Act (TSCA). American families don’t want half-baked reform that makes things worse. They want to prevent the learning disabilities, asthma, birth defects and cancer associated with toxic products.
Yet, the Udall-Vitter bill would weaken product safety in five major ways. Join me down here in the policy weeds for just a bit. I’ll show you how the bill rolls back current authority to protect your family’s health from toxic chemicals.
1. The Bill Gives a Free Pass to Toxic Products that Illegally Cross the Border
Suppose the U.S. Environmental Protection Agency (EPA) bans an unsafe chemical in a product or restricts a new product use. (But see below for how the bill makes that harder). Then, it would be illegal to sell or import that product into our country. But how do we secure the border against toxic products?
Under current law, EPA has a powerful enforcement tool. They can require an importer to certify that their product does not contain a banned chemical in violation of TSCA. That’s one way the dangerous products are kept out.
But the Udall-Vitter bill would make it virtually impossible for EPA to use this import certification authority. Before they could act, EPA would first have to assess the risks to public health from the imported product. Then they’d have to somehow determine whether such an enforcement action would impede commerce and trade. (See page 106, lines 18-24, in the bill).
These burdens either can’t be met or will invite endless industry lawsuits. Never mind that it takes EPA years to finish risk assessments. Products suffer from huge data gaps on chemical use and exposure. To industry, no data means no risk, which means no EPA action. And how can enforcing a ban on illegal toxic products ever be considered an impediment to trade!
Importing a product with a banned chemical would still violate the law. But under the bill, EPA could no longer ask the importer to prove that the product complied with TSCA. That’s like saying we can’t demand that suspected criminals pass an extra security check at the international terminal. As result of this bill, more unsafe products will cross our borders.
2. The Bill Trips Up EPA on a New High Hurdle to Requiring Safer Products
On the upside, the bill does take the handcuffs off EPA’s ability to regulate dangerous chemicals. (Old news – that consensus was reached more then five years ago). Also, the safety standard would be made more health protective than current law, which left even deadly asbestos untouched. All good fixes, so far.
And under the bill, EPA must assess the safety of high priority chemicals, albeit at a slow walk (see below). If EPA determines that a chemical fails the new safety standard, EPA can choose any of the many tools in current law to slash exposure – production bans, use restrictions, workplace controls, etc. – to protect public health and the environment.
EXCEPT … the bill adds a brand new high hurdle. Before EPA can restrict an unsafe chemical in a product, they must now also show evidence that the product causes “significant exposure” to that chemical. (See page 17 of the bill, beginning line 21). No terms are defined here, nor is the scope of products spelled out. Again, data gaps on chemical use often prevent EPA from often knowing which products are the worst offenders. If the chemical is unsafe, EPA should have freedom to restrict any source, without having to conduct a second safety assessment just on products.
If the bill stands, expect a classic move from the industry playbook. They’ll disaggregate the risk into smaller and smaller product categories until nothing is “significant.” Or they’ll sue EPA for failing to meet its new burden. In either case, the bill makes it harder to regulate consumer products that are a known source of chemicals that fail the safety standard.
3. The Bill Blocks Future State Leadership on Unsafe Chemicals in Products
Under current law, States are free to ban the use of a toxic chemical in a product, and to adopt any other restriction that doesn’t conflict with a federal TSCA rule. The Udall-Vitter bill would radically rollback State authority. The bill would prevent States from taking future action on toxic products, even when EPA fails to act.
In the last decade, 35 states have restricted dangerous chemicals in household products, such as mercury thermometers, toxic flame retardants in couches and televisions, lead and phthalates in toys, BPA in baby bottles and cadmium in jewelry. State leadership on chemicals has protected the public in the absence of federal leadership and driven the chemical industry to the TSCA reform table.
Under the proposed legislation, States would be preempted (or blocked) from restricting a dangerous chemical as soon as it’s named a federal “high priority” – even though the EPA has another 7 years to take final action on an unsafe chemical. With missed deadlines, compliance schedules and industry lawsuits, 10 to 20 years could pass with no action. During all that time, states can’t act and EPA hasn’t acted to protect public health from a chemical found to fail the safety standard.
And that’s just the beginning. To see more ways that the federal government would infringe on States’ rights under the Udall-Vitter bill, click here. (The State rollbacks appear on pages 139-153 of the bill).
4. The Bill Slows EPA to a Crawl on Restricting Dangerous Chemicals
There’s a lot of pent up demand for federal action on toxic chemicals. Some 62,000 chemicals were grandfathered in without safety review when TSCA passed. More than 20,000 new chemicals have since entered the market without adequate health and safety data. At least 2,000 of these chemicals are known to be hazardous, although that number may increase by ten-fold once data gaps on safety are filled.
While it’s true that current law has no deadlines for EPA action, the Udall-Vitter bill upgrades the status quo to a tepid pace at best. After a five-year start-up, the bill requires EPA to assess the safety of only 25 chemicals every three to five years (see page 34). The fees industry must pay are capped at 25% of the agency’s TSCA budget, which is hardly scaled to the task (see page 161).
Assuming no delays, it will take EPA about 400 years just to assess the safety of the chemicals we already know are inherently dangerous to human health and the environment.
That isn’t a serious response to either the chemical crisis or consumer confidence.
5. The Bill Helps Industry Weaken European Leadership on Toxic Chemicals
The chemical industry is angling for a perfect trifecta. After chilling the States and slow-walking EPA, they aim to use the pending Transatlantic trade deal to place downward pressure on farther-reaching European chemical bans and restrictions.
Industry has made no secret of its strong support for a trade deal with Europe that ensures “regulatory cooperation” across the Atlantic. The first in a series of chemical phase-outs under REACH, the EU’s modern chemical policy, just took effect last month. Europe is the global leader on safer chemicals.
Until the U.S. overhauls the 39-year old TSCA, the chemical industry has no leverage in arguing those European standards should be lowered. At the GlobalChem conference this month, Larry Sloan, who runs SOCMA, a chemical manufacturers lobby, admitted: “We’ve got to see some movement on TSCA [reform] because that will impact our trade agreements.”
The weaker that TSCA reform ends up, the stronger the chances of harmonizing downward with Europe. Under the arcane mechanisms of the pending trade deal, tougher European chemical regulations can be challenged as an impediment to trade. That will slow global market leadership in safer chemicals and products.
We need TSCA reform, so what should be done about this bill?
Oscar Rogers, SNL’s expert consultant, offers the clearest answer: “FIX IT!” Solutions are available to every problem mentioned. The Udall-Vitter bill should be strongly opposed until it’s fixed. If the chemical industry won’t compromise, then Congress should wait to get it right. Future generations deserve real reform.