The current U.S. law on chemical safety is 37 years old, riddled with exceptions, and widely seen as ineffective — so much so that the federal government hasn't even tried to restrict an unsafe chemical since an asbestos ban was overturned in courts in 1991.
On Wednesday, Sen. Frank Lautenberg (D-N.J.) and Sen. David Vitter (R-La.) announced they had reached a "groundbreaking" agreement to revamp the 1976 Toxic Substances Control Act, ending two decades of gridlock in the Senate over how to test and regulate the tens of thousands of chemicals found in everything from crib mattresses to water bottles.
If the legislation were to pass, it would be the first time that a major U.S. environmental law was updated since the 1990 overhaul of the Clean Air Act.
“This bill proves that bipartisan compromise can still work in Washington,” said Sen. Joe Manchin (D-W.Va.), who Senate staffers say was critical in bringing the main authors together. All told, the bill has eight Democratic co-sponsors and eight Republicans onboard.
The American Chemistry Council, which represents manufacturers like Dow and Dupont, hailed the compromise. Environmentalists were split, with some viewing it as a encouraging step and others criticizing it for doing too little.
All sides seem to agree that the current process is dysfunctional. Under the Toxic Substances Control Act, the Environmental Protection Agency (EPA) can only call for testing of a chemical if evidence somehow surfaces that the substance is dangerous. What’s more, tens of thousands of existing chemicals were exempt from review when the law was enacted in 1976.
The old law also set a high bar for the EPA to regulate dangerous chemicals — the agency has to prove it's taking the “least burdensome” action possible, a vague and difficult standard to meet. After a court struck down the EPA’s efforts to ban asbestos in 1991, the agency effectively gave up trying to restrict dangerous substances.
All told, the federal government has required testing for just 200 of the 84,000 chemicals registered in the United States — and banned just five substances deemed dangerous.
In recent years, however, worries over chemical safety have grown. Several states have moved to ban certain chemicals in everyday products, including Bisphenol A, a chemical widely used in plastics. And in recent years, the flame retardants used in household furniture have come under scrutiny for potential health risks.
Lautenberg has noted that the Centers on Disease Control have found at least 212 industrial chemicals in human bodies, “including at least six known carcinogens and dozens that are linked to cancer, birth defects, and other diseases.”
To address those concerns, the Lautenberg-Vitter "Chemical Safety Improvement Act of 2013" would give the EPA a number of new tools:
--The EPA would review all actively used chemicals and label them as either “high” or “low” priority based on their potential risk to human health and the environment. The agency would then subject high-priority chemicals for further review.
--Regulators would no longer have to go through a long, protracted rule-making process to get information from companies about their chemicals.
--The EPA will also have greater flexibility to take action on chemicals deemed unsafe, ranging from labeling requirements to outright bans on things like asbestos.
When previous iterations of this bill were considered, the American Chemistry Council had worried that the EPA approval process for new chemicals would be too cumbersome and slow the pace of new products coming to market. In the new compromise, the EPA would have to affirmatively declare that new products are “likely to be safe” before coming to market.
“We think it’s a very fair and very balanced proposal,” said Cal Dooley, president of the American Chemistry Council. He added that chemical companies were prepared to comply with the EPA’s requests for more information “in a cost-effective way.”
Environmentalist reactions were more mixed. Ken Cook, president of the Environmental Working Group, said that the compromise was a scaled-back version of previous bills from Lautenberg, which included stricter health standards for assessing chemicals.
“This bill is basically the least that could be done,” Cook said. He expressed concern that it could pre-empt stricter state laws and would allow chemical companies to have their products deemed safe by the federal government under a relatively loose approval process.
By contrast, Richard Denison of the Environmental Defense Fund said the bill was “certainly a net improvement over the status quo,” though he worried that the lack of hard deadlines in the legislation could allow delays in the regulatory process if the bill passed.
Co-sponsors included Kirsten Gillibrand (D-N.Y.), Mike Crapo (R-Idaho), Richard Durbin (D-Ill.), Lamar Alexander (R-Tenn.), Charles Schumer (D-N.Y.), James Inhofe (R-Okla.), Tom Udall (D-N.M.), Susan Collins (R-Maine), Mary Landrieu (D-Louisiana), Marco Rubio (R-Fla.), Joe Manchin (D-W.V.), John Boozman (R-Ark.), Robert Menendez (D-N.J.), and John Hoeven (R-N.D.).