Among the lists of “to dos” for Congress prior to the holiday recess was passing S.697, a bipartisan bill to update the 1976 Toxic Substances Control Act (TSCA), the federal law regulating industrial chemicals in the United States. There is broad consensus among business, advocacy and government organizations that reform of this law is long overdue. TSCA fails to give the EPA the authority it needs to protect the public from everyday exposures to toxic chemicals in common household products. It has only regulated five chemicals in its nearly 40-year history and has required testing on only 200 of the more than 80,000 chemicals currently on the TSCA inventory.
On the evening of Dec. 17, with no advance notice, the U.S. Senate passed TSCA reform legislation by unanimous consent. The legislation is an updated version of the Senate bill, S.697 (known as Udall/Vitter), not previously made public. A very different and much preferred version of TSCA reform, the TSCA Modernization Act, passed the House in June.
Problems with the Senate bill
Although improved from earlier versions, the Senate bill still has serious problems. In a rollback of current regulatory authority, the legislation makes it more difficult for EPA to identify and intercept imported products containing a toxic chemical, leaving a large segment of the marketplace weakly regulated. This includes many of the toys and other articles that parents placed under the tree this Christmas.
Another problem with the bill is the designation of “low priority” chemicals, requiring EPA to approve them and allow them to be put into consumer products without a thorough safety review. In addition, there are numerous bureaucratic requirements placed on EPA, such as a complete review of the TSCA inventory, that divert scarce resources from EPA’s core work of identifying and restricting harmful chemicals.
However, the fatal flaw in the Senate bill is the timing of pre-emption of state action on chemicals of concern. States will be blocked from taking action while EPA studies a chemical, creating a regulatory void that could leave the public unprotected. This will tie the hands of states like Minnesota that have been in the lead in protecting public health from unnecessary toxic chemical exposures. Over the past few years Minnesota has passed bills to protect public health from exposure to mercury, formaldehyde, BPA, toxic flame retardants, lead, cadmium and to require a listing of other chemicals of concern in children’s products.
States free to act in House version
The House bill, on the other hand, does not pre-empt state action until EPA makes a final determination on a chemical, a much more reasonable approach. The House bill supports a robust partnership between state and federal regulators in protecting the public from toxic chemical exposures.
Because the timeline for EPA action on chemicals is slow in both bills, we should at least be assured that our government retains the ability to prevent toxic imports and that states can continue to enact policies to protect their citizens when the federal government has not yet taken action. As members of Congress reconcile the House and Senate bills to arrive at a version that lands on President Barack Obama’s desk, I urge lawmakers to address the weaknesses in the Senate bill by adopting the best provisions of the House and Senate bills to craft a reformed TSCA that will truly protect the health of our citizens.
Kathleen Schuler, MPH, is Healthy Kids and Families program director at Conservation Minnesota.
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