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
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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.”

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