There’s a new toxics bill in town. A few weeks ago, a draft law emerged in the Senate to overhaul the dramatically outdated national rules that govern “industrial chemicals” — aka the thousands of impossible-to-pronounce ingredients in everyday products, from household cleaners to couches, water bottles to children’s toys.
Major reform of these rules is long overdue, but unfortunately the new bill is problematic. Unless significantly strengthened, it won’t do enough to protect the most vulnerable among us — particularly our children — from the harms of toxic chemicals. We can, and must, do better.
The proposed new law is a bipartisan compromise introduced by Sen. David Vitter (R-LA) and Sen. Frank Lautenberg (D-NJ). Public and environmental health groups across the country have flagged a number of fundamental problems, and note that the compromise bill does much less to protect vulnerable populations than previous versions of chemical policy reform driven by Senator Lautenberg.
Sadly, Senator Lautenberg passed away soon after the bill’s introduction. For a thoughtful tribute to his work to protect public health, see this appreciation from our colleague Andy Igrejas, campaign director for Safer Chemicals Healthy Families.
The preemption problem
One of the key problems with the compromise bill is that it would undermine real progress on toxics policy that’s been made in several states, potentially overturning hard-fought laws that take real steps to protect children from chemical harms.
The new compromise bill says once EPA takes action on a chemical, more protective state laws would be null and void.
This “preemption” of state laws — meaning weaker rules at the national level override them — is emerging as a key and insidious industry strategy. Turns out it’s much easier for chemical industry lobbyists to win one weak federal law than to do battle state by state by state.
Other weaknesses of the compromise legislation include a lack of firm deadlines to act on harmful chemicals (we know this will be problematic from our experience with pesticide law); no tools to address the special dangers of chemicals that are longlasting and can build up in the human body; and no safeguards for “hotspot” communities that face disproportionate harm.
There are other issues as well, and several of our partners have put together thoughtful analyses. See, for example, these pieces from the BlueGreen Alliance, Safer Chemicals Healthy Families, the Environmental Working Group, and this joint statement from concerned groups across the country (including PAN).
Kids & chemical soup
Here’s why it’s important to get this right: to a child’s growing body, it doesn’t matter where harmful chemicals come from — they could be pesticide residues on blueberries topping the morning’s bowl of cereal, flame retardants in a cozy mattress or softeners wafting from a favorite rubber duck.
Whatever the source, the science is increasingly clear that many chemicals in our everyday world are harming our kids. And that the national rules for protecting children from these health threats — whether pesticides or chemicals in everyday products — aren’t working very well.
So along with our efforts to press for pesticide protections and alternatives, PAN has in recent years supported the national campaign to overhaul the antiquated national rules on industrial toxics. It’s been an effective effort.
The Safer Chemicals Healthy Families campaign and its partners across the country have brought the links between hazardous chemicals and children’s health into the national spotlight. From stroller brigades to giant rubber ducks, they’ve used creative strategies to bring this important issue into the public conversation — creating space for real policy reform.
Now that policy change is in motion, it’s important that we get it right. It’s been 37 years since the last reform of the Toxics Substances Control Act; the rules put in place in this round will likely be the law of the land for decades to come.
June 11, 2013 —
Sincere effort at bi-partisan progress; needs improvement to ensure adequate protection
We commend the bi-partisan group of Senators on the introduction of the Chemical Safety Improvement Act. We view it as a sincere effort to cut through Washington gridlock on the urgent issue of protecting the public from toxic chemicals.
However, we do not support the legislation in its current form. After an initial review, we urge the sponsors and Senator Boxer, Chair of the Environment and Public Works Committee, to strengthen the legislation in critical areas. These proposed improvements fit within the framework of the Chemical Safety Improvement Act and we offer them in the spirit of promoting bi-partisan cooperation to enact a program that protects public health and the environment, and drives innovation.
1) Protect Vulnerable Populations
The legislation requires the Environmental Protection Agency (EPA) to assess exposures of sub-populations to chemicals during the course of a safety assessment, but it does not explicitly require that safety determinations protect vulnerable populations from those exposures. This is a critical omission. The National Academy of Sciences and a large body of accepted science have shown that the developing child, pregnant women, and other groups are biologically more susceptible to harm from exposure to toxic chemicals. Some populations are also more vulnerable because of disproportionate exposure, as in the case of communities with a legacy of heavy chemical contamination. The legislation should define “vulnerable populations” and explicitly require that they be protected from aggregate exposure to high priority chemicals. In addition, the safety standard itself needs more clarification to ensure it is strictly health-based and protective.
2) Preserve State Authority
The preemption provisions in the bill would largely prevent states from taking action to address both “high priority” and “low priority” chemicals, even in the absence of federal regulation to protect the public. The waiver provisions included to address these concerns are insufficient and will likely prove cumbersome in practice. Longstanding and important state protections, including California’s Prop 65 law, could be at risk of being preempted. State and local authority to inform and protect the public should be explicitly preserved.
3) Expedite Action on the Worst Chemicals
The legislation attempts to separate the decision about the health and environmental risks of a chemical from the economic and social decisions over how best to manage those risks. (The co-mingling of these decisions was a key failure of the Toxic Substances Control Act.) However, the legislation partially undermines that critical reform by requiring extra red tape before the EPA can phase out a chemical (as compared to other risk management measures.) As the EPA will only want to pursue this option for the very worst chemicals, these provisions could have the perverse impact of slowing down action on those chemicals.
The failure of our current policy was sealed when the EPA was prevented from banning asbestos—one of the world’s most notorious substances—after a lengthy rulemaking and subsequent court battle. Congress should not repeat the drafting mistakes that led to that decision in this legislation.
4) Establish Deadlines and Timetables
The Chemical Safety Improvement Act generally lacks deadlines and timetables for EPA to complete a minimum number of assessments and safety determinations. The history of environmental laws is that they achieve their clearest results with such provisions. The sponsors and the committee should develop clear deadlines and minimum work requirements to ensure that EPA has the incentive and resources it needs to implement the new law.
5) Require Adequate Data to Prioritize Chemicals
Chemicals must have adequate data for evaluation before they are prioritized and can be deemed of low concern to the public. The legislation should specify that a chemical should only be designated as low priority in the presence of information sufficient to demonstrate a low risk to human health and the environment.
We look forward to working with the bill sponsors and the Environment and Public Works Committee to make these improvements and to craft a law that can enjoy broad support from the health and environmental communities as well as labor and business. We may ask for additional clarifications or improvements as our analysis of the bill continues.
Kids today are sicker than they were a generation ago, and a growing body of scientific evidence points to pesticides as a reason why. From childhood cancers to learning disabilities and asthma, a wide range of childhood diseases and disorders are on the rise.
Download A Generation in Jeopardy, PAN’s report reviewing dozens of recent scientific studies on the impacts of pesticides on children’s health.