In the wake of the recent chemical spill into the Elk River and the drinking water supply of several hundred thousand West Virginians, a new call has been raised to quickly move bi-partisan legislation introduced in May 2013 to reform the Toxic Substances Control Act (TSCA). Unfortunately, it would be compounding one environmental disaster with another to move forward with that legislation, the Chemical Safety Improvement Act (S 1009), in its introduced form. While some individual provisions of S. 1009 are potential improvements over TSCA, other provisions would mute or erase their impact and the bill as a whole would leave the public with even less protection. That bill, as is, would leave EPA hamstrung and prevent states from taking action. TSCA, first passed in 1976 (and never updated) has largely been a failure. Intended to give EPA the authority to regulate the manufacture, use, distribution and disposal of chemicals “from the cradle to the grave” it has yielded virtually no meaningful regulation or protection, particularly from the tens of thousands of chemicals that were in commerce at the time the law was enacted. The law “grandfathered” in chemicals like the one that leaked in West Virginia, 4-methyl-cyclohexane-methanol(MCHM), meaning that they remained on the market unregulated even though virtually no information was available on any risks they might pose. The law “grandfathered” some 62,000 chemicals, and did not require that EPA test them for safety or ensure that they met a standard of safety.
The law also contained provisions making it difficult for EPA to require testing of chemicals, and saddled the agency with a requirement to prove that it had examined and done detailed analysis on virtually any possible means to regulate a chemical before settling on the appropriate set of restrictions. The impact of these provisions was fully revealed in 1991 when a federal court overturned EPA’s attempt to ban most uses of asbestos, which is known to cause disease, including cancer, after a 10-year effort. Since that time EPA has not regulated another chemical substance under TSCA. In total, the agency has regulated only six of the original 62,000 substances under the law.
Health, science, labor, consumer, justice and environmental organizations from across the country have been working toward reform of TSCA for years in an effort to ensure the existence of a strong federal program for assessing the safety and regulating chemicals. Unfortunately, the Chemical Safety Improvement Act (CSIA), as introduced, would fail to ensure such a program, and at the same time would prevent state and local governments from taking action to protect their citizens – which is what has taken place in the absence of federal action under TSCA. On balance, the CSIA would actually be worse than current law.
In the wake of the West Virginia spill, the outcry has been to ensure that information is available about risky chemicals and that those risk be limited. But the CSIA in its current form would require EPA to go through as much as a decade of preliminary steps before it could start regulating additional chemicals. Even after analysis began, it would continue to make it hard to get information on existing chemicals and to use that information. The bill makes it easy, though, for the agency to decide that a chemical is a “low priority” and to never regulate it. And the bill blocks states from taking action on chemicals even if EPA has not acted or will never act.
Here are just a few of the many problems with the introduced version of the Chemical Safety Improvement Act:
The safety standard in the legislation is not protective of public health. It would not ensure the protection of vulnerable populations, including those more heavily exposed to toxic chemicals and those – like pregnant women, children and the elderly – more vulnerable to the toxic effects of chemicals. And the safety standard could still allow consideration of cost as a factor in determining whether a chemical was safe and could be regulated by the EPA, the same failure as under the existing law.
The bill contains no enforceable deadlines for EPA to take action to assess or regulate chemicals, and establishes no minimum number of chemicals for the agency to assess each year. With thousands of chemicals never assessed for safety, and with industry and congressional opposition to most steps taken by EPA to assess or regulate chemicals to date, a failure to include enforceable deadlines and minimum requirements ensures that nothing would happen under this new “improved” TSCA.
In addition to the lack of enforceable deadlines, the bill contains pages of provisions that would tie the agency up in red tape, delaying potentially for years any effort by EPA to prioritize, test, assess and regulate chemicals. In addition, the bill is laced with provisions that would further hamper EPA, and put a thumb on the scale in favor of chemical industry-preferred methodologies for assessing chemicals over methods endorsed by the National Academy of Sciences.
The bill would prevent EPA from requiring testing of a chemical unless it has been classified as “high priority” which in many cases may be difficult without some additional testing – due to the lack of available health for thousands of chemicals in commerce – including MCHM. This is one of many provisions designed to ensure that ultimately the number of chemicals assessed and actually regulated are very low. As far as the lack of available health data for most chemicals in commerce, one of the reasons for that is the excessive protection for claims of Confidential Business Information (CBI) which have been abused over the years and resulted in protection of information that is not actually CBI. The bill would grandfather in all previous CBI claims, including the identity of some 16,000 chemicals.
Another problematic provision would allow EPA to designate a chemical as “low-priority” meaning “likely to meet the [unprotective] safety standard” -- even when data to make an informed decision is lacking. In addition, once EPA made such a low-priority designation, states would be pre-empted from ever taking any action on the substance. Hundreds or thousands of substances could easily disappear down this memory hole, never to be thought of again unless perhaps they spill into somebody’s drinking water supply.
As noted above, the bill would also widely preempt states from taking action on chemicals, including high-priority chemicals, even when action by EPA may be years away, or may never occur at all. The bill would also take away states’ existing authority to enforce federal provisions of the law within their state. And the bill would eliminate existing authority for EPA to take quick action to protect the public from dangerous chemicals when such a need arises.
Finally, the bill contains no provision to ensure that EPA has sufficient funding to run the type of program necessary to assess the safety of chemicals and ensure that those that remain in commerce are manufactured, processed, distributed, stored, used and disposed of with sufficient safety controls in place.
In short, the problems with TSCA that are illustrated by the chemical spill in West Virginia would not be fixed by the Chemical Safety Improvement Act, as introduced, and in some respects they would be made worse. The bill as currently written would provide the public with the illusion of an effective federal program to regulate chemicals, while tying the EPA in knots and taking away existing state authorities. The chemical spill in West Virginia is an illustration why we need to strengthen the Toxic Substances Control Act (and certain other environmental laws); it is not a justification for enacting a flawed CSIA.