Why Congress Can’t Fix Our Crazy Chemical Safety System

Chaiman of the House Energy and Commerce Committee, Rep. John Shimkus (R-IL), questions Former Rep. Lee Hamilton, (D-IN), and retired Air Force Lt. Gen. Brent Scowcroft, co-chairmen of the Blue Ribbon Commission on America's Nuclear Future during a hearing on Capitol Hill February 1, 2012 in Washington, DC. The subcommittee heard the recommendations of the Blue Ribbon Commission on America's Nuclear Future on how to create safe, long-term solutions for managing and disposing of the nation's spent nuclear fuel and high-level radioactive waste. (Photo by Pete Marovich/Getty Images)
National Journal
Jason Plautz
Add to Briefcase
Jason Plautz
May 1, 2014, 1 a.m.

How broken is the na­tion’s chem­ic­al-safety sys­tem? Of the 80,000 or so chem­ic­als cur­rently used in com­merce, the En­vir­on­ment­al Pro­tec­tion Agency has only tested 200 since Con­gress gave the agency its march­ing or­ders nearly four dec­ades ago.

And of the 200 tested chem­ic­als, only five have been banned or reg­u­lated.

That por­ous safety net comes cour­tesy of a law that every­one — from doc­tors to in­dustry groups, Demo­crats to Re­pub­lic­ans — agrees needs fix­ing. But des­pite a bright start on a re­form bill and the best of in­ten­tions this term, it’s taken just 12 months to go from bi­par­tis­an­ship to bick­er­ing, and what was once a prom­ising push for chem­ic­al-safety re­form may stall in its tracks.

Or, as John Din­gell, the re­tir­ing former House En­ergy and Com­merce Com­mit­tee chair­man, said of the old law: “This is a piece of le­gis­la­tion that has sat around and I think will prob­ably sit around un­til hell freezes over.”

The Tox­ic Sub­stances Con­trol Act (TSCA) passed in 1976 and hasn’t been touched since, the only ma­jor en­vir­on­ment­al stat­ute to not get a con­gres­sion­al up­date. It’s riddled with vague lan­guage and weak au­thor­ity that has left EPA largely power­less when it comes to po­ten­tially tox­ic chem­ic­als.

But fix­ing it has proven dif­fi­cult. The fur­thest any re­form bill got was last ses­sion, when le­gis­la­tion from late Demo­crat Frank Lauten­berg of New Jer­sey — the Safe Chem­ic­als Act — cleared the Sen­ate En­vir­on­ment and Pub­lic Works Com­mit­tee in 2012. The meas­ure, however, nev­er got a vote on the Sen­ate floor.

Hope was re­newed last spring thanks to an un­pre­ced­en­ted bi­par­tis­an deal between the lib­er­al stal­wart Lauten­berg and con­ser­vat­ive Sen. Dav­id Vit­ter of Louisi­ana. The pair’s Chem­ic­al Safety Im­prove­ment Act wasn’t per­fect to either side, but the op­por­tun­ity ap­peared to be. And across Cap­it­ol Hill, the House was hold­ing a series of edu­ca­tion­al hear­ings on the prob­lems with TSCA, with high hopes for a bi­par­tis­an agree­ment in that cham­ber.

Flash for­ward to now: The Sen­ate bill is on hold while staff re­tool the lan­guage to please green groups and some Demo­crats who say the bill would pree­mpt state laws, doesn’t pro­tect vul­ner­able pop­u­la­tions, and doesn’t give EPA enough strict au­thor­ity. And though spon­sors say the meas­ure is gath­er­ing mo­mentum, no new draft has pub­licly emerged since a hear­ing on the bill in Ju­ly.

A House draft bill is mov­ing, but ap­pears to have fallen vic­tim to the tra­di­tion­al left-right squab­bling that could cast a pall on its bi­par­tis­an hopes. A hear­ing Tues­day be­fore En­ergy and Com­merce’s En­vir­on­ment and Eco­nomy Sub­com­mit­tee con­sidered Chair­man John Shimkus’s re­cently re­vised dis­cus­sion draft for a re­form bill, but also quickly slipped in­to a heated ar­gu­ment about who was be­ing ig­nored in the bill-writ­ing pro­cess.

Typ­ic­al bick­er­ing in which Demo­crats said they were be­ing pushed out of the pro­cess — des­pite Re­pub­lic­an Shimkus’s plea to not “go through the pro­cess of ju­ni­or-high ‘he said, she said’ ” — is only part of the prob­lem. It may be that the un­der­ly­ing text of TSCA is so topsy-turvy that any re­hab job cre­ates prob­lems.

The chem­ic­al in­dustry, while it broadly sup­ports TSCA re­form, has nat­ur­ally balked at pro­pos­als that would re­quire too much reg­u­la­tion of their product or the dis­clos­ure of con­fid­en­tial in­form­a­tion they say would pose a risk to trade secrets. And green groups have pushed hard to main­tain tough­er state laws in states like Cali­for­nia or Ver­mont that do more than EPA, while Re­pub­lic­ans and in­dustry have warned about a po­ten­tial patch­work of rules.

Mean­while, stake­hold­ers seem to be draw­ing dif­fer­ent con­clu­sions from the same lan­guage. Shimkus, for ex­ample, says the up­dated draft will pro­tect some state laws, a must-have for health ad­voc­ates. But green groups and Demo­crats say that as­pect of the bill would, in fact, cut so deeply as to af­fect laws re­lated to dis­clos­ure of the chem­ic­als used in frack­ing for­mu­las.

And the bill re­moves TSCA’s ori­gin­al lan­guage re­quir­ing that EPA choose the “least bur­den­some” reg­u­la­tion, which en­vir­on­ment­al­ists have said pre­ven­ted the agency from reg­u­lat­ing as­bes­tos, but nobody can seem to agree on wheth­er new re­quire­ments would leave EPA in the same po­s­i­tion again.

It was summed up by Re­pub­lic­an Rep. Bill Cas­sidy of Louisi­ana, who said the TSCA talk al­ways makes him feel “turned around, be­cause it seems as if people are dis­agree­ing on things that should be com­mon know­ledge.”

Richard Den­ison, a seni­or sci­ent­ist with the En­vir­on­ment­al De­fense Fund, said that the last time an over­haul of TSCA was tried was Lauten­berg’s Safe Chem­ic­als Act, which didn’t garner much sup­port from the right. “So the no­tion arose of writ­ing a bill that was closer to TSCA but fixed its core flaws,” Den­ison said.

“I think ne­go­ti­ations in both houses are seek­ing to bring the bills back to where the fixes they in­clude that are clearly in­ten­ded to ad­dress key flaws in TSCA will ac­tu­ally de­liv­er those fixes. I’m still op­tim­ist­ic we can get there,” Den­ison ad­ded.

A markup of the House lan­guage is ex­pec­ted next month, which leaves little time for the two sides to come to­geth­er on lan­guage. Green groups say the House bill as writ­ten is worse than cur­rent law and it’s un­likely to draw the bi­par­tis­an sup­port spon­sors say they want without changes.

It’s a state of af­fairs that left House En­ergy and Com­merce rank­ing mem­ber Henry Wax­man of Cali­for­nia ask­ing to “con­sider scal­ing back the am­bi­tion of this ef­fort” to “fo­cus on where we can find agree­ment.”

“We need a law to pro­tect the pub­lic from these ex­pos­ures,” Wax­man said. “But this pro­cess isn’t work­ing. We need to bridge our dif­fer­ences, not ac­cen­tu­ate them.”

What We're Following See More »
Trump Again Brings Up Charlottesville in Angry Speech
1 minutes ago

Vice President Pence and other speakers in Phoenix Tuesday night appealed "for unity and healing." President Trump himself said his movement "is about love." But then he became animated and angry as he revisited his comments about Charlottesville, reading them aloud. "You know where my heart is. I’m only doing this to show you how damned dishonest these people are,” he said. He also suggested he still intends to pardon controversial Sheriff Joe Arpaio.

16th Charity Cancels Function at Mar-a-Lago
19 hours ago
U.S. Imposes Sanctions on 16 Companies
20 hours ago
North Korean Chemical Weapons Shipments to Syria Intercepted
1 days ago

"Two North Korean shipments to a Syrian government agency responsible for the country's chemical weapons program were intercepted in the past six months, according to a confidential United Nations report on North Korea sanctions violations."

Ryan: “There Are No Sides” on Charlottesville
1 days ago

After taking fire for not forcefully condemning President Trump's statements on Charlottesville, Speaker Paul Ryan today issued a statement that takes issue with any "moral relativism" when it comes to Neo-Nazis. "There are no sides," he wrote. "There is no other argument. We will not tolerate this hateful ideology in our society." Ryan participates in a CNN town hall tonight from Racine, Wis.


Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.