2 Battling TSCA Bills Fight It Out in Congress

by Sokolove Law

This past spring, when two bills were introduced to the U.S. Senate aimed at reforming the Toxic Substances Control Act (TSCA) of 1976, it was clear that one of the bills – that authored by Edward Markey (D-MA) and Barbara Boxer (D-CA) – was far and away superior. The TSCA was enacted to help the Environmental Protection Agency (EPA) control the use of chemicals that could have negative effects on human health, and the decades-old bill is outdated, ineffective, and in need of serious reform.

The first bill, introduced on March 10, is more commonly referred to as the “Udall-Vitter” Act, after the co-sponsoring senators, Tom Udall (D-NM) and David Vitter (R-LA). The second bill, introduced shortly thereafter by senators Markey and Boxer offers much more comprehensive measures to protect worker and consumer safety. Boxer is a ranking member of the Committee on Environment and Public Works, and a strong proponent of stricter reforms to protect Americans from toxins in their environments and in consumer products.

While both of the bills were intentioned for updating an old and outdated law, safety advocates and officials inspecting the two proposals were left with some questions – namely: Could either of the proposed bills affect real change?

In comparing the two bills, it’s clear that the Udall-Vitter bill simply does not go far enough to update the law and protect citizens of all ages from some pretty frightening types of health hazards. In fact, some watchdog groups are calling the bipartisan bill presented by Udall and Vitter the “industry bill,” because it gives away too many concessions in terms of monitoring chemicals. These concessions are great for companies, but terrible for American children, parents, and communities. The Workgroup for Public Policy Reform says the Udall-Vitter bill gives the chemical industry a “free pass.” The Boxer-Markey bill, by contrast, comes from two of the biggest supporters of comprehensive reform.

A Fair “Bar”

The struggle for fair industry regulation is based on two key questions about the extent of increased regulation: How high should the bar be set for safety? How should products be fairly regulated to ensure that people who use them are not harmed?

Many experts would characterize the existing TSCA Act as only providing a minimum of regulation to products. This is an unacceptable way to protect people – it wouldn’t serve in local government, and it certainly shouldn’t be the way that national regulators operate either. Instead of rigorous testing, laws like this mostly require safety advocates to “prove” that a hazard exists. Since it’s impossible to test every product and regulate every commercial activity, it’s fair to say that a lot of mistakes can happen, and a lot of exposure to dangerous chemicals can occur under the radar of the regulators.

The Environmental Working Group, a non-profit dedicated to protecting consumers from environmental hazards, spells out this idea in an article co-authored by Legislative Attorney Melanie Benesh and Vice President of Government Affairs Scott Faber:

“The industry bill would retain the very weak ‘no unreasonable risk of harm’ safety standard rather than the ‘reasonable certainty of no harm’ standard applied to pesticides on produce and to food additives. By contrast, the Boxer-Markey bill applies the ‘reasonable certainty of no harm’ standard.”

It’s this very precise difference between an assumption of either hazard or safety that is so important to public health advocates. The Boxer-Markey bill is clearly a better model for reforming regulation. It provides a comprehensive approach, and requires stricter regulations, which translates directly to better safety outcomes, and saves lives. This key idea should not get lost in the shuffle as government officials iron out their differences when it comes to TSCA reform.

Why Is the Boxer-Markey Bill More Comprehensive?

Benesh and Faber’s article also breaks down many of the detailed differences between the two bills, including these significantly different proposals for reform as presented in March:

  • The Udall-Vitter bill mandates a cost-benefit analysis for any proposed ban; the Boxer-Markey bill only triggers a cost-benefit analysis based on certain economic criteria
  • The Boxer-Markey bill establishes more safety assessments for the 10,000 tons of chemicals that are spilled every year in the U.S.
  • The Udall-Vitter bill requires proof of “significant exposure” for new regulation; the Boxer-Markey bill does not
  • Only the Boxer-Markey bill gives states the power to act on their own to implement regulations on environmental hazards that may be different from those of the EPA

Another major difference involves asbestos, a naturally occurring mineral. Exposure to asbestos can cause serious and fatal health conditions like mesothelioma, an aggressive cancer. Asbestos has been regulated in the U.S. for many years, but only the Boxer-Markey bill puts in place certain expedited processes for asbestos review, and opens the way for the EPA to effectively ban asbestos.

More TSCA Reform Bills: Safety-Minded Senators Put Thought into Law

Boxer and Markey are not the only prominent Democrats in the Senate calling for this level of reform. Another voice for these consumer protections has been Senator Kirsten Gillibrand (D-NY), who has both introduced additional legislation, and has been active in reviewing the Udall-Vitter bill. In general, the Democratic voice has been for a true strengthening of safety regulations, while the Republican approach has been much more watered-down and amenable to big corporate interests.

“I was shocked to learn that in most instances, the federal government is unable to require safety testing of the chemicals used in the products my kids use every day,” said Senator Gillibrand, promoting the Safe Chemical Act in April of 2013. “It’s outrageous that everything from car seats to my son’s dishware could be leaching hormone-disrupting or cancer-causing chemicals, but the EPA is virtually powerless to regulate them. We need to do better.”

Gillibrand is right. We do need to do better. As recently as this month, pundits, industry heads and scientific organizations have continued to call for real TSCA reform. Their fear, which is a real one, is that a tepid bill like the Udall-Vitter bill will not provide enough real safety outcomes, and that concessions to industry will leave too many innocent people at risk for future devastating health problems.

“As essential as that state-level work has been and remains, we believe it is not sufficient,” wrote Richard Denison, Lead Senior Scientist of the Environmental Defense Fund.  “We must also secure a strong federal system that provides EPA with the authority and resources needed to establish nationwide protections from chemical risks.”

David Brodwin, a cofounder and board member of American Sustainable Business Council, had this to say earlier in the month:

“The Environmental Protection Agency wears the referee’s jersey, but the law under which it works desperately needs to be modernized…we need regulatory reform that brings clear decisions, not one delay after another.”

TSCA Reform Is Moving Toward a Consensus: But Is It Strong Enough?

Since the introduction of these competing pieces of legislation, through the summer and into fall, the Udall-Vitter bill has been modified and adjusted, passing through various stages of review. The bill has won the approval of James Inhofe (R-OK), another ranking member of the Environment and Public Works Committee alongside Senator Boxer, but it has not won over some of the most ardent supporters of public health.

The issue has of course gotten the attention of the White House, and the Obama administration is expressing positivity about a bipartisan bill, suggesting that Udall and Vitter’s bill could be modified to meet the administration’s standards. Gina McCarthy of the EPA has expressed similar views.

In addition, news from D.C. shows more legislators are piling on to approve the modified version of the bipartisan TSCA bill. An Oct. 5th report from ChemicalWatch claims the Udall-Vitter bill is now “filibuster-proof,” having won support from both sides of the aisle. Joining in to back the modified bill is Senator Markey, who approved after advocating for changes to expedited regulatory action, disclosure, and mandatory deadlines for industry compliance to EPA standards. In a statement, Markey said:

I am pleased by the positive and meaningful progress on improvements to TSCA reauthorization legislation, and I am proud we have secured changes to the bill that will ensure chemical companies comply with mandatory deadlines for safety regulations, expedite regulatory action on the most dangerous chemicals, allow states more flexibility to implement new chemical regulations and give EPA the funds it needs to do the job. Our federal chemical law is outdated and ineffective, and this legislation is a much-needed update that will help protect families and communities from dangerous chemicals.”

However, reports from recent months have indicated that Senator Boxer remains a holdout on the modified bill, continuing to work with fellow legislators for even more changes, including the elimination of loopholes that could take the teeth out of real, meaningful TCSA reform.

As the bargaining continues and more adjustments are made to the Udall-Vitter bill, Boxer is inching “close[r] to a deal” on the bipartisan bill which hers had been competing against. If Boxer is able to amend the bill to reflect her own, public health in America will be better for it.

Staying the Course on Public Safety

Though legislators are getting closer to passing TSCA reform, the coalition of lawmakers, attorneys, non-profit heads and other safety advocates who watch out for American families should keep pushing for the best standards for chemical regulation. While the old bill simply did not work, the new bill may not end up being much better, unless those defending public health continue to speak out.

Compromise and bipartisanship are generally seen as values within the Beltway, but those who look out for the common good should not compromise on protections from toxic chemicals, and on the elimination of toxic and potentially deadly elements like lead and asbestos from our supply chains. Toxic exposure can be, and often is, fatal – so fighting for a fair bill is not simply “important,” it is a life-saving fight. Every step toward more comprehensive TSCA reform makes our country a safer place to live, and that’s a goal worth fighting for.