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Congress is on the cusp of passing the most sweeping overhaul of U.S. chemical safety laws in 40 years, a rare bipartisan accord that has won the backing of both industry officials and some of the Hill’s most liberal lawmakers.
The Toxic Substances Control Act, which has not been reauthorized since President Gerald Ford signed it into law in 1976, regulates thousands of chemicals in everyday products including detergents and flame retardants. It has come under sharp criticism as ineffective from all quarters, including environmentalists who back stronger federal oversight and chemical companies that are now subject to a patchwork of more stringent rules in some states.
The compromise — which lawmakers finalized Wednesday night and will unveil Thursday morning — will provide the industry with greater certainty while empowering the Environmental Protection Agency to obtain more information about a chemical before sanctioning its use. While some environmental groups have opted to remain neutral or have faulted the final details, the measure has the tacit approval of the Obama administration and the top Democrat on the Senate Environment and Public Works Committee, Barbara Boxer (D-Calif.).
The overhaul will have major impact on Americans’ lives because chemicals are so interwoven into their daily experience, from the shampoo they use in the morning to the containers of food they eat at night. Most consumers assume these chemicals have been tested for safety, when the reality is that only a tiny fraction of them have.
The improbable deal, which both sides have pursued since President Obama first took office, gives the EPA the power to require companies to provide health and safety data for untested chemicals and to prevent substances from reaching the market if they have not been determined to be safe. Under current law, the agency must prove a chemical poses a potential risk before it can demand data or require testing, and these substances can automatically enter the marketplace after 90 days.
In the past four decades, the EPA has required testing for just 200 of thousands of chemicals, and it has issued regulations to control only five of them. More than 8,000 chemicals are produced in the United States at an annual rate of more than 25,000 pounds each, according to the agency.
Under the bill, EPA can order firms to test their new products, rather than go through a lengthy rulemaking process to trigger such testing. The measure also imposes user fees on industry to help ramp up testing of chemicals.
In return, chemical manufacturers will be subject to a single regulatory system, although states will still have the right to seek a federal waiver to impose their rules on a given chemical. Currently, states such as California, Maine, Maryland, Minnesota, Oregon, Vermont and Washington have placed their own restrictions on some chemicals in the face of federal inaction.
American Chemistry Council President Cal Dooley, whose group represents dozens of chemical companies as well as major U.S. automakers and manufacturers of consumer goods, said his members were willing to disclose more information about their products in exchange for a more uniform standard. The organization has lobbied hard for the bill for at least eight years, at points circulating drafts of legislation to lawmakers.
“Not having one federal regulation guiding products onto the national marketplace is really problematic,” Dooley said in an interview. The bill “does strike what we see as an appropriate balance.”
Republicans did win some key concessions, including some protections for confidential business information and requirements that EPA base its risk determinations on up-to-date science.
The deal has also won over many trial lawyers, who lobbied Democrats to back it, because it updates the landmark law without depriving them of the right to sue.
Environmentalists, by contrast, remain split. Throughout negotiations, a key question has been whether states can regulate chemicals already undergoing a safety review by the EPA. While the federal government retains that sole power, Boxer and committee Chairman James M. Inhofe (R-Okla.) have crafted a compromise to allow state intervention under certain circumstances. It allows states to restrict a chemical’s use if a federal risk review and determination takes more than three-and-a-half years.
“We are very pleased with the package that is emerging here,” said Richard Denison, the Environmental Defense Fund’s lead senior scientist. If the EPA “is dragging its feet, states should be able to make decisions in their own interest.”
But officials from the Maryland Public Interest Research Group contend that the agency’s approval process can take years, during which time any advocacy by state lawmakers or green groups to block a chemical’s path to market could be stalled.
“It’s really not a feasible way to protect Marylanders from chemicals while the EPA is assessing them,” said Juliana Bilowich, public health organizer for Maryland PIRG. “Some of these chemicals are acutely unsafe.”
Maryland, for example, helped to lead the way in banning a chemical called Bisphenol A, an endocrine disrupter linked to cancer that has been used to make infant bottles and other plastic products.
“Maryland is just one of many states that has stepped up in the absence of federal protections,” said Bilowich, noting that the state also has restricted heavy metals such as cadmium and lead, as well as toxic flame retardants in baby products.
Denison argues that concerns about states’ rights need to be weighed in light of the fact that current law lets chemicals go to market after three months even without a thorough federal review.
“I’ve been working on this for 15 years,” he said. “It fixes every major problem with the current law.”
The bill’s provisions include prioritizing the review of chemicals stored near drinking water as well as those that are human carcinogens and highly toxic with chronic exposure.
The negotiations have involved high drama at times. The late Sen. Frank R. Lautenberg (D-N.J.) had worked with Inhofe on the issue starting in 2012, and brokered a compromise with Sen. David Vitter (R-La.) shortly before Lautenberg’s death in 2013. Boxer had rejected that compromise as too weak. Vitter and Inhofe, who pledged to carry on the effort, then joined forces with Sen. Tom Udall (D-N.M.), and modified the measure significantly to attract broader support.
Lautenberg’s widow, Bonnie, has lobbied actively for the bill, which is named the Frank R. Lautenberg Chemical Safety for the 21st Century Act.
The Lautenbergs’ involvement, according to one committee aide who asked for anonymity because the bill had not yet been unveiled, “helped make it very personal for a number of members.” The late senator, who ushered through a smoking ban on all U.S. commercial flights, used to tell his colleagues he thought updating the chemical law would save more lives.
In recent weeks, White House officials have played a supportive role in the talks, while the EPA has offered technical assistance.
White House spokesman Frank Benenati said in an email that “we are encouraged by the progress that’s being made” on the bill. “We believe the latest draft represents an improvement over current law, and we’re hopeful that House and Senate negotiators continue to work to finalize a strong TSCA bill for the president to sign.”
Still, activists such as Tiernan Sittenfeld, senior vice president for governmental affairs at the League of Conservation Voters, said her organization was still waiting to see what the final negotiations yielded.
“This has been 40 years in the making, and we want to make sure we get it right and have a bill that truly protects public health as much as possible,” Sittenfeld said. “We feel encouraged by many of the changes that have been made over the years, but we still want to see further improvements.”
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