What’s in it? What’s next?
In June, the House of Representatives passed the TSCA Modernization Act by a whopping 398 to 1 vote. (In case you’re wondering, the “no” vote was Tom McClintock of CA.) The vote is mostly good news for those of us who have been working so long for meaningful reform of our nation’s broken chemical policy. (I’ll get to why only “mostly” later.)
The sponsors were able to draw such broad support by focusing on the basics of reform – threading a needle that was limited enough to be conservative, but which also contained several of the fundamentals for public health progress. Representatives Shimkus, Pallone, Upton, and Tonko deserve credit for the achievement.
Some of the most difficult work lies ahead, however. To become law, both houses of Congress have to pass the same bill. The Senate will now either take up the House bill or will take up its own bill, S. 697 by Senators Vitter and Udall. The two bills are different in their structure, length, and style. (The House bill is much shorter and clearer.) There are also policy differences.
In general, the House bill presents a better framework for the final round of policy-making. It would be easiest if the Senate took it up and amended it in a few targeted ways. If the Senate instead took up its own bill it would still be preferable to work off of the House bill and add key provisions from the Senate in any conference.
So what is in the House bill?
Here are the fundamentals:
- The standard for EPA to act on a chemical will now be “health only” as opposed to a “cost benefit” standard.
- EPA is required to ensure that vulnerable populations- like pregnant women and children or heavily exposed communities- are protected when they act on a chemical.
- The “least burdensome” requirement in the current law – which played a major role in TSCA’s failure – has been removed.
- EPA can require toxicity testing on any chemical by the massively simpler process of an “order” versus the complicated process of a formal rulemaking.
- EPA is required to screen existing chemicals for the combined properties of persistence, bioaccumulation, and toxicity; publish a list of those; and then put them on a fast track for regulation.
- States are free to act to protect their citizens at any point until the EPA has either exonerated a chemical or taken action to restrict it. Even then, state actions that have already been taken are preserved and several categories of state regulatory activity are exempted.
- Rules for Confidential Business Information (CBI) are tightened going forward and the information can be shared with states, first responders, and health care providers.
That’s all good.
So what has fallen short?
In my last blog I raised the proverbial “red flag” about an imbalance in the bill. On the one hand, the EPA was required to undertake an assessment whenever industry requested it and stepped forward with fees to cover EPA’s costs. On the other hand, the minimum the bill sets for EPA-prioritized chemicals – 10 per year – was qualified with the phrase “subject to the availability of appropriations.” That meant that the industry assessments were an enforceable mandate. The EPA ones were not. Our fear was that the industry priorities could quickly overwhelm public health priorities.
The version approved on Tuesday only partially fixes this problem. EPA is given the ability to defer the industry requests if staff and other resources are overly constrained. The exact mix of assessments is effectively kicked down the road to future Congressional appropriators. That’s an improvement, certainly, but the 10-per-year schedule is sufficiently modest that it should be a true mandate and EPA’s discretion on the industry assessments should also be strengthened. A small amendment here would have a big impact.
Also, the House bill lacks a mechanism for EPA to raise new money through fees for its work on the chemicals it prioritizes. The Senate bill has such a provision. It could easily be added to the House bill as it is something industry has already agreed to. Preferably, the cap on the fee provision could be raised.
There were some ambiguities introduced into the bill between the committee and the floor that would also require clarification, but those are mostly technical and should be simple to do. Basically, even though elements remain in the bill that we didn’t like, targeted changes to the House bill would make it a good final compromise.
[pullquote]But, you may ask, isn’t the Senate bill more “comprehensive”? Wouldn’t we be losing something if Congress worked off of the House bill?[/pullquote]
That is the claim made by the bill’s supporters, certainly. Here’s the problem: most of what is good about the Senate bill overlaps with the good in the House bill. Most of what is different about it, with some exceptions, is either bad from a public health perspective or not meaningful.
Let’s examine some of these Senate provisions:
- The “mandate to review all chemicals” in the Senate bill is an empty promise that is not enforceable. The schedule is even slower than 10 chemicals per year.
- The alleged reform of the new chemicals program in the Senate bill also doesn’t hold up to scrutiny. It is basically a rewording of the status quo. (Privately, industry supporters of the bill and government lawyers agree with this assessment.) So while there are reforms to the new chemicals program we would like to see, like minimum data requirements, neither bill has them. In fact, there is some weakening of EPA’s ability to require notification when a chemical of concern is used in a product in new ways.
- The “sustainable chemistry” provision in the bill seemed benign until the committee report on the bill was recently released. (Committee reports are official statements of legislative intent.) Remarkably, the report states that these weak provisions are intended to replace a great program at EPA called Design for the Environment (DfE). Under that program EPA currently certifies safer alternatives to problematic chemicals. It also allows companies to use a label, recently renamed “Safer Choice,” that is one of the few environmental labels that actually means something. DfE has enjoyed support from major consumer product companies and public health advocates alike. The idea that the Senate bill could be used to undermine this popular program had not even been on our radar until the committee report was released last week.
- What about the “inventory update”? This is a provision in the Senate bill that requires EPA to divide chemicals into an “active” and “inactive” inventory. The point seems to be to show that there are fewer chemicals in commerce than people think. That’s not a big problem in a world where EPA has lots of time on its hands, but in the context of limited reform and very limited resources this provision will waste precious time and money on something with no public health purpose.
- There are four pages in the Senate bill devoted to “nomenclature.” Nobody except the authors of this provision understand what it does. I’ve heard that it involves settling a dispute a handful of companies have with EPA, but I admit it could just as easily be a secret map to Jimmy Hoffa’s final resting place. No one has ever explained the provision and yet it must be there for a reason.
- The Senate bill generally puts more process in front of anything EPA wants to do. EPA can’t assess a chemical unless it meets the high priority criteria, for example, which could constrain the universe of reviewed chemicals. The ability of EPA to require testing in the Senate bill –improved compared to current law – is then also caveated with new process requirements and findings. There are also new policies and guidance required, most of which aren’t necessary. Some of these provisions provide potential “attachment points” for potential litigation. Again, time and money.
Then there are the big-ticket items we’ve focused on before and which have driven much of the debate about the Senate bill.
- The Senate bill would preempt states when EPA begins the review of a chemical rather than when it is done. The committee added a work-around, but it’s complicated, and the provision will still clearly chill state action that may be needed to address an urgent health threat. Ask the firefighters why this is a problem. They have spearheaded state and local action on toxic flame retardant chemicals to protect their members.
- The “low priority” category in the Senate bill exempts chemicals from regulation based on a finding that they are “likely to meet” the safety standard. It’s an invitation to abuse at worst and at best sends a murky signal to the public and the market about whether a chemical is really safe.
In fairness, there are a couple of things that the Senate bill does better:
- The CBI reforms are better.
- An EPA rule is more defensible from a lawsuit.
These provisions, in addition to the fee, should be on the table to fold into the House bill.
The simplest path, therefore, and the one that is optimal for public health and the environment would be to simply fix the House bill in these few targeted ways. The alleged “comprehensiveness” of the Senate bill has been wildly overblown.
I don’t know how the process will unfold going forward. The Senate could take up the House bill. The Senate could pass its own bill, potentially with improvements. The two bills could be “conferenced” or both Houses could engage in “ping pong” – people really call it that – whereby they amend each other’s bills and send them back and forth until agreement is reached.
Whatever the process, our focus will be on achieving a genuine reform that makes progress for public health and the environment – even if modest – and eliminating anything that goes backwards.