The New House TSCA Draft is a Dud. Discuss.

Last week, House Republicans released their second version of a Discussion Draft of Toxic Substances Control Act (TSCA) Reform legislation.  The House Energy and Commerce Committee’s Environment and Economy Subcommittee will hold a hearing on the draft this week.  Andy Igrejas, Director of the Safer Chemicals Healthy Families coaltion (NRDC is a member) will be testifying at the hearing. The rumor is that the subcommittee plans to mark up the bill in late May, with an eye to House floor time in June.

If the bill that reaches the House floor looks like the draft released last week, Members committed to protecting the public from carcinogens, reproductive and developmental toxins and endocrine disrupting chemicals – and protecting the public’s right to know about the presence of those chemicals in their homes – should have no hesitation to vote no (and, if possible, hell no).

In a previous blog we identified several major problems with the first House Discussion Draft.  These included:

The absence of a clearly health-protective safety standard that will ensure protection of the public, including vulnerable populations, from unsafe chemicals;

A lack of enforceable deadlines and minimum requirements to make sure that EPA moves forward on a steady pace to assess and (where necessary) regulate unsafe chemicals;

A “prioritization” scheme designed to ensure that hundreds and possibly thousands of chemicals are deemed “low priority” – a determination which can be based on insufficient information to adequately assess the chemical -- upon which they are largely exempt from future regulation by EPA or states;

Favoring industry approaches to assessing the risk of toxic chemicals and ignoring the recommendations of the National Academy of Sciences;

Reducing the availability of information available to the public about chemicals, both their uses and their potential hazards;

Epic preemption of state and local authority’s abilities to take action to protect their citizens from unsafe chemicals, or even obtain information about those chemicals including the products they are used in;

Absence of a mechanism to ensure EPA takes expedited action to reduce exposure to chemicals for which we already know exposure is widespread and a substance is unsafe.

This was far from an exhaustive list of the problems with the bill.  For more extensive discussion about the flaws with the first Discussion Draft you can read testimony from Anna Fendley of the United Steelworkers, and Mike Belliveau of the Environmental Health Strategy Center.

While a few improvements have been made to the bill in some of these areas, none of the fundamental underlying problems have been solved, and new provisions that further weaken EPA’s authority and public protections have been added.  The new draft cannot credibly be called a step in the right direction.

Under the revised draft:

A new safety standard has been added for some purposes, but the scope of protection is unclear and vulnerable populations remain unprotected;

Some deadlines have been added, but there is nothing that actually requires EPA to identify any chemical as high priority – the key act that triggers the new deadline – and there are still no minimum requirements for the number of chemicals EPA is to assess.  With a backlog of 80,000 unassessed chemicals, assessing a few now and then if EPA decides to do so does not constitute reform;

A positive change is allowing EPA to require testing of a chemical to gather the data needed for prioritization – it has taken nearly a year to get this one concession from the chemical industry.  Unfortunately, chemicals may still be deemed “low priority” based on inadequate information, and the designation still preempts future state actions and ties EPA’s own hands;

The science provisions of the bill have been trimmed but are still problematic, and Republicans and industry continue to studiously ignore the recommendations made by the National Academy of Sciences;

The new draft actually gets worse on access to information, prohibiting EPA from making public the identity of a chemical even when a health or safety study shows the chemical may harm health or the environment, as long as a company claims it is confidential business information;

There are minor tweaks to the preemption provisions but given the broad scope of the bill language those changes are essentially meaningless;

Needless to say, no mechanism for expedited action to regulate the worst chemicals quickly has been added to the new draft.

Imagine you live in a neighborhood where a large lot has long been vacant.  It is unsightly, causes drainage problems and is generally a nuisance.  Neighbors have been working to have a new community center built on the site for years.  Then a developer comes along and announces good news: the lot won’t be vacant anymore.  Instead, a new structure is going to be developed by the end of the year.  As the neighbors get an initial look at the plans, they have major concerns.   The new development will be huge, with no setback on any side of the lot. Part of the lot will be used for a tannery that will run 24/7, 365 days a year, will be loud, pollute the neighborhood and smell terrible.  There will be extremely bright lighting all the time, it will be circled with razor wire, and numerous venomous snakes will be kept on site although there are no details as to how those will be stored, transported or handled (or even why they are needed).  The developers announce that the new facility will be called “the Community Center.” 

The reaction from the neighbors as you can imagine is pretty strongly negative.  They put together a long list of all the glaring and potential problems with the development proposal.  The developer agrees to consider it as long as the neighbors agree to the “general framework” of the developers’ plans and about a month later they come back with a revised proposal.  The revised proposal includes these changes: there will be a 6” setback on two sides of the property.  The tannery will be closed Christmas, New Years, and 4th of July.  The lighting will be turned down to a lower intensity during weekday daytime hours (in exchange the tannery will need to be bigger).  The razor wire will be made from recycled metal.  No change on the venomous snakes.  The developer hails the progress that has been made and urges the neighbors to support the proposal and hints strongly that, either way, the project is going forward no matter what.  Welcome to the “TSCA Reform” “Community Center.”

If Republicans and industry really believe their own rhetoric about the urgency to pass TSCA reform legislation, they are going about it in an odd and strikingly unproductive way.  They introduced an initial House Discussion Draft with all of the major flaws of the widely discredited Senate bill plus a few extra goodies for industry.  Two months later a new Discussion Draft emerges with a host of changes -- but the balance sheet is essentially unchanged.  Generally speaking, shouting at someone over and over “It’s Urgent! It’s Urgent!” is not going to make them any more motivated to drink the poison you are offering.

None of this means it is impossible for a credible, effective TSCA reform bill to emerge this Congress, but it certainly suggests that the chemical industry is still not serious about achieving that outcome. It is all fine and well to point to the names of members who are co-sponsors of a bill, or the organizations that "support the bill or the process" or to point to all the word changes in the bill between one version and another, but the bottom line is what the total package of legislative language says and does (or doesn’t say or do). That's really the only relevant test and, unfortunately, yet another proffered version of TSCA reform has failed the test by a wide margin.

But we're not giving up, and we're not going away (except in August of course). When the chemical industry and their friends get serious about genuinely negotiating, we are ready to do that, and we have been all along.