Eight Key Questions on Chemical Safety Reform

Chemicals used in everyday products should be safe – right? States should have a role in regulating potentially toxic chemicals – right?

Keep these simple questions in mind as Congress begins to debate reforming the Toxic Substances Control Act (widely called TSCA) – a law so weak that even the chemical industry concedes that it’s broken.

Last fall, Sens. David Vitter (R-La.) and Tom Udall (D-New Mex.) proposed legislation that would block states from regulating many chemicals, but it wouldn’t give the Environmental Protection Agency the power or the resources to determine whether they’re safe. A new draft of the Vitter-Udall bill is expected any day.

This spring, Congress will return to these basic questions – and many others – as it renews debate over TSCA.

As they do, here are eight questions legislators should be asking:

1. Shouldn’t chemicals be safe? Shouldn’t the chemicals in cleaners and other household products be as safe as those in our food? Last year, the Vitter-Udall bill proposed a “safety” standard that required only that chemical companies show their wares present “no unreasonable risk of harm.” Who’s to decide what’s unreasonable? EPA? The courts? Will the new draft have an unambiguous safety standard that ensures that chemicals are safe?

1. Are we putting health first? Shouldn’t chemicals that pose a serious risk to health be banned? Last year’s version of the Vitter-Udall bill would require a cost-benefit analysis before EPA could phase out or ban a chemical. Will the new draft allow EPA to ban dangerous chemicals regardless of the cost?

1. Are we leveling the playing field? In most cases, judges grant substantial deference to the EPA’s decisions, but their actions under TSCA are subject to a tougher “substantial evidence” standard that results in more judicial review. Last year’s Vitter-Udall bill retained the tougher standard. Will the new draft level the playing field for chemical safety reviews?

1. Are we setting tough deadlines? Shouldn’t we require expedited safety evaluations of asbestos and toxic chemicals that persist in the environment and accumulate in the body? Last year’s Vitter-Udall bill would allow EPA to take seven years to investigate a single chemical – and the bill set no deadlines for implementing new chemical restrictions. Will the new draft have tough deadlines that ensure that chemicals are quickly scrutinized for safety? Will there be deadlines for implementing new rules?

1. How many chemicals will be investigated? Thousands of chemicals are routinely used in commerce. Shouldn’t EPA quickly evaluate the safety of the most dangerous chemicals right away? Last year’s Vitter-Udall bill required that only 10 chemicals be designated high-priority in the first year. Will the new draft ensure that hundreds of dangerous chemicals are quickly assessed for safety?

1. Are we preserving a role for the states? For decades, states have been taking action to keep their residents safe from dangerous chemicals. Shouldn’t we ask states to use their know-how to support and supplement EPA? Last year’s Vitter-Udall bill would block any state action on those chemicals that EPA deems “high priority.” Will the new draft preserve a role for the states? Will the new draft allow states to use their state environmental laws to protect public health?

1. Will industry pay its fair share? The chemical industry reported near-record profits in 2013 and last year spent more than $60 million to lobby Congress, so it can certainly afford to help finance chemical reviews. Last year’s Vitter-Udall bill did not propose to require the industry to share more costs of these investigations. Will the new draft include enough funding to complete needed evaluations of dangerous chemicals?

1. Will EPA be able to ban asbestos? In 1991, a court ruled that under TSCA the EPA didn’t have the power to ban even asbestos – a substance that kills 10,000 Americans every year and has been banned by 54 countries. Retaining the “unreasonable risk” and “substantial evidence” standards and requiring cost-benefit analyses – as the Vitter-Udall bill proposed last year – could well mean that asbestos would remain legal. Will the new draft allow EPA to quickly ban asbestos?