Bill to revise chemical regulation getting scrutiny

The EPA would be required to evaluate all chemicals and have the power to demand tests.
The EPA would be required to evaluate all chemicals and have the power to demand tests.
Posted: July 01, 2013

Eaten any bisphenol A from food in that plastic storage bin lately?

Sat on a couch laced with flame retardants?

Both chemicals have been linked to numerous health problems, including developmental delays. Legislation now working through Congress has everything to do with whether these and thousands of other chemicals in daily use are deemed safe.

Or harmful.

For now, we don't really know how dangerous many compounds are because a federal law that governs their regulation is weak and outdated, experts say.

The Toxic Safety Chemicals Act is the only major environmental statute that has not been revised since its adoption in 1976. And when it was adopted, it grandfathered in about 60,000 chemicals then in commercial use.

Now, the number of chemicals tops 80,000, but the U.S. Environmental Protection Agency has been able to require testing on only about 200 and has regulated or banned only five. It was not even able to ban all uses of asbestos, a known carcinogen.

This had long worried the late Sen. Frank Lautenberg, a New Jersey Democrat, who since 2005 repeatedly introduced legislation that would reform TSCA, as the law is known.

It got nowhere.

In April, during what he'd announced would be his final term in office and nearly two months before he died, he tried again.

About six weeks later, environmental groups were astonished when Lautenberg and U.S. Sen. David Vitter - a Louisiana Republican who had been working on an industry version - submitted a compromise bill.

Industry, which also has called for TSCA reform because of dwindling public confidence in chemical safety, supports the bill.

Cal Dooley, president of the American Chemistry Council, called the proposal "a balanced, comprehensive approach" that would instill confidence without crippling an economically vital industry.

Two former EPA officials who ran the agency's TSCA program support the bill.

But public interest and environmental groups say it is still too weak.

Indeed, when a team of scientists and lawyers at the nonprofit Environmental Working Group read the legislation, their first reaction was, "Oh, they've sent us the wrong bill. This is the industry bill," president Ken Cook said.

One major flaw they saw: The bill doesn't make it any more likely the EPA will act in a timely way, and it takes away states' ability to regulate chemicals more strictly than the EPA.

Cook was at a loss to explain the initial support of many groups - respect for Lautenberg, perhaps, or a knee-jerk reaction to support anything bipartisan.

"It was screamingly clear that this was a really, really bad bill," Cook said.

Not all environmental groups agree. Environmental Defense Fund senior scientist Richard Denison and his colleagues reviewed the bill and saw "a significant political breakthrough that could not be ignored."

Among its strengths: The EPA would be required to evaluate all chemicals and would have the power to demand testing without going through the lengthy, formal rule-making process now required.

"That's a huge sea change," Denison said. "It goes from a system that assumed all of those chemicals were safe to one that requires the EPA to actually look at them and determine their safety."

Yes, there are flaws, he said, but if a bill that improves TSCA can be passed, this moment should not be squandered.

So let the politicking begin.

On June 13, even though the current proposal was introduced in the Senate, a House subcommittee took the somewhat unusual step of holding a hearing because, as chair John Shimkus (R., Ill.) put it, there was "heightened interest in congressional action."

In the days before, the American Alliance for Innovation, a coalition of nearly 90 trade groups - from the U.S. Chamber of Commerce to Oregon Women in Timber - praised the legislation for providing "a solid scientific foundation for regulator decisions" and "clear direction for EPA."

Then a wave of letters from two dozen public-interest nonprofits - including the Breast Cancer Fund, Beyond Pesticides, and Greenpeace - went out to House and Senate committees, saying the bill fell far short of safeguarding the public.

Nearly three dozen lawyers and law scholars sent a similar letter. Signers included the University of Pennsylvania's Adam Finkel, an expert in human health risk assessment and former OSHA regulations director.

He later said that given the likelihood it would be decades before subsequent revisions, changes "should be a big improvement, and this bill is not even a little improvement."

Temple University law professor Amy Sinden and two Rutgers law professors also signed.

Those familiar with the new legislation credit U.S. Sen. Joe Manchin (R., W. Va.) with getting the compromise.

Manchin had been planning to sign on to Vitter's bill. But out of gratitude to Lautenberg for supporting his gun bill, he gathered staffers from the two offices and said, "I owe it to Frank to give it a shot. I'm asking you guys to sit down together."

For now, it is unclear who will fill Lautenberg's "impossibly large shoes . . . given his accomplishments in public health," Cook said.

One possibility is Lautenberg's fellow New Jersey Democrat, U.S. Sen. Robert Menendez, who e-mailed that the Lautenberg/Vitter bill would "largely" fix the problems with TSCA, and that "our job now is to get that deal over the finish line. If we do, it will be one of the most significant environmental laws enacted in the last 20 years and a testament to a career spent protecting public health."

Eyes are also on Sen. Barbara Boxer (D., Calif.), who cosponsored Lautenberg's four earlier TSCA reform bills, but not the current one. "I plan to look at all the proposals on this important issue," she said. "In Frank's memory, we will come up with something really good."

As for the public, "they assume the government has their backs on this," Denison said. When they find out differently, they get mad, he said.

But he also said support for change had been "a little bit thin." Although the issue affects people's health, people also want cleaning products that work better and gadgets with new capabilities.

Either way, scrutiny will be vigorous, said David Goldston, government affairs director at the Natural Resources Defense Council, which does not support the current bill.

"You need people to catch their breath and actually look at it in a clear-eyed way - without the haze of bipartisanship or who the sponsors might be - and that's going to happen now," he said.

Contact Sandy Bauers at 215-854-5147,, or follow on Twitter @sbauers. Read her blog, "GreenSpace," at

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