Sign the Petition for a Stronger Chemicals Law
You may not have heard about it, but there are changes about to happen to the way toxic chemicals in our consumer products are regulated, and it may not be for the better.
On 5/17 a “final draft” of legislation to reform the Toxic Substances Control Act (TSCA) became public and a vote is expected in Congress soon. Both chambers have been meeting since February to reconcile the Senate and House versions. The bill is an improvement over a 2013 version that was favored by the American Chemistry Council (industry). The new version improves current law in some ways but still goes backwards in a few ways, so the public health community is not supporting it.
Key Issue: State Authority or “Preemption”
The states have led the way in taking action against toxic chemicals during the many years that EPA has been hamstrung by TSCA. California is most famous for policies like Prop 65 (product warnings about cancer and birth defects). In New York, NY advocacy groups including several Long Island breast cancer groups have been pushing for a Child Safe Products Act, and fear that this law will reverse years of progress. The Child Safe Products Act is seeking to address arsenic, lead, mercury, benzene, and tris (flame retardant) in children’s products in New York. Under current law, states are allowed to restrict a chemical as they see fit unless EPA decides to impose its own restrictions.
While this new final version does allow for State actions that have been taken as of April of this year to still stand regardless of what EPA does (“grandfathering”), future state actions are the issue. Unless they apply for a waiver, 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 in and impose restrictions while the EPA considers its own restrictions. When EPA finishes its own restrictions, the state preemption takes effect again. Hard to follow? True! The complication reflects the chemical industry’s influence. Recent 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.
Issue: Imported Products
This version 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 including toys, shoes, clothes, etc. EPA will look at a chemical and 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?
Issue: Will More Chemicals Be Tested?
The final draft bill expands EPA’s testing authority in important ways though it falls short of what is required by Europe, by comparison. Unlike with pesticides or drugs, many 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 workplaces. The final draft bill gives EPA the ability to require testing through the less complicated provision of an “order.” But it is still limited to certain scenarios. 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 almost excluded from the draft, but thankfully appears to be included now.
- On the positive side, EPA currently faces significant legal barriers that have prevented it from taking action on even the worst chemicals, like asbestos. A strict cost-benefit standard currently used has now been changed for the better to be a “health-only” standard.
- Furthermore, the bill requires that EPA identify any populations that are disproportionately at risk such as chemical workers and 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.
- On the downside, the bill still places a significant 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 a chemical – can take from 5 to 7 years.
- There is an issue with whether more information will be made public due or remain Confidential Business Information (CBI). Identity-shielding provisions play a role in environmental scandals, like the recent one around the DuPont chemical PFOA (used in nonstick pans). Companies argue that if you make certain information public, you are giving away their technology for free. Current law says health and safety studies cannot be hidden from the public. This new bill allows the sharing of CBI with state governments and health providers or emergency responders dealing with an injury. The bad news is that the chemical identities can still be hidden if justified to EPA, which is a weakening of the current law.
5/26 update: The bill passed by the House of Representatives on 5/23 addressed the above preemption problem.
Excerpted from SaferChemicals.org. See full article here: http://saferchemicals.org/2016/05/21/e-near-final-tsca-reform-legislation-a-rundown/
You have the power to Influence this Bill!
Take action & write or call your Senators, where changes still are being made:
Dear Senator Schumer/Gillibrand:
Our rights to ban toxic chemicals in New York State are in imminent jeopardy since we have been informed that the federal Toxic Substance Control Act (TSCA, Senate bill #697) has been reformed to preempt states from banning chemicals which will significantly weaken New York’s ability to pass a strong Child Safe Products Act.
Simply put, Industry has convinced members of Congress to support a bill that has the potential to lower the national standard of chemical safety.
Please contact our U.S. Senators Schumer and Gillibrand “to do everything within his/her considerable power to ensure that any TSCA reform allows states to retain the right to regulate chemicals and protect their own residents.”
Senator Kirsten Gillibrand Ask to speak with Andres Hoyos, Legislative Correspondent, Washington D.C. office (202) 224-4451
Senator Charles Schumer Ask to speak with Sean Byrne, his Legislative Aid at the Washington D.C. office: (202) 224-6542