Senator Udall: With Committee Passage of Chemical Safety Bill, We are Big Step Closer to Law Protecting Kids from Chemicals

U.S. Senator Tom Udall issued the following statement after the Senate Environment and Public Works Committee voted 15-5 to move his bipartisan Frank R. Lautenberg Chemical Safety for the 21st Century Act to the full Senate:

“I want to thank all of the members of the committee for their thoughtful consideration of our legislation to finally overhaul the failed 1976 Toxic Substances Control Act. I especially want to thank Senators Whitehouse, Merkley and Booker for their work to improve key protections for consumers and to give states greater power to restrict chemicals and enforce laws.

“This isn’t a perfect bill, but it is a very good one. For years, I supported the late Senator Frank Lautenberg’s chemical safety bill. We even passed it out of the EPW Committee. But despite his hard work and advocacy, it could never get the bipartisan support needed to bring it to the floor. He laid the bipartisan groundwork for this bill by working with Senator Vitter. Two years later, our bill has significant bipartisan support, and momentum continues to grow because the American people want a law that protects them and their families from chemicals like asbestos, BPA, formaldehyde, styrene, and so many other hazardous substances.

“We cannot let this opportunity to protect our kids from dangerous chemicals pass us by. Every year, almost 1,000 new chemicals come on the market. The Environmental Protection Agency is not regulating any of them. In fact, in 39 years, EPA has restricted just five chemicals. States are trying to fill the void, but they aren’t able to do much more. In seven years since it created a regulatory program, California has only begun the process of writing rules for three. New Mexico and most other states have little or no ability to test and regulate chemicals. We need a national solution. We need a strong national law. And we need the EPA to be the cop on the beat.

“Passage of this bill in committee is a major step forward for New Mexicans and all Americans. The next step is passage by the full Senate. I strongly urge senators to support it so we can clarify the law for everyone involved — and finally ensure our families and our communities are safe.”

Udall wrote the Frank R. Lautenberg Chemical Safety for the 21st Century Act with U.S. Sen. David Vitter (R-La.). It ensures the Environmental Protection Agency (EPA) has the ability to regulate and ban dangerous chemicals for the first time since 1991, when a court ruled that the EPA could not even ban asbestos. The bill is named for the late Senator Frank Lautenberg (D-N.J.), who for years led efforts to reform TSCA, and it has the support of Lautenberg’s widow and numerous advocates for health, environment and labor.

The Udall-Vitter bill dramatically improves current law by requiring EPA to consider only the health and safety impacts of a chemical — never the cost or burden to manufacturers — when assessing chemicals for safety. It ensures special protections for those most vulnerable from chemicals — defined in the bill as pregnant women, infants, the elderly and chemical workers. It sets a new fee so chemical companies will bear a larger share of the cost of evaluating and regulating chemicals. And it provides certainty in the law about when states may step in if EPA does not act to regulate or ban dangerous chemicals.

The compromise agreement with Democratic U.S. Sens. Sheldon Whitehouse (R.I.), Jeff Merkley (Ore.) and Cory Booker (N.J.), announced Monday, addresses concerns that had been raised about the legislation, including when state actions would be preempted by the EPA and how states would be allowed to enforce the law. The changes strengthen protections for American consumers by making it clear that states may act to regulate a chemical if EPA misses required deadlines. The agreement also ensures that states will get waivers to act on chemicals while EPA is evaluating them for safety. And it makes clear that states may co-enforce the law, with the condition that penalties may not be collected from both the state and the federal government for the same violation.

Further details of Monday’s agreement include:

The amendment clarifies when states may act after EPA begins evaluating a chemical:
Limitations on new state regulatory actions start when the scope of uses of a chemical is defined and end when the safety determination is made.
-If the deadline for the safety determination is missed, states are automatically granted a waiver from the “pause.”
-EPA “shall” approve a state request for a waiver during the safety assessment if the states meet the following criteria:
The state requirement doesn’t violate federal law,
The state requirement doesn’t unduly burden interstate commerce, and
The state’s concern about the chemical substance or the use of the chemical substance is based in peer-reviewed science.
-If EPA fails to make a decision on a state waiver within 90 days, the waiver is approved.
-The “automatic” approval of the waiver can be challenged, in which case the approval is suspended until a decision is reached, but if there is still no decision after a further 90 days, the waiver is again approved.

The date for state laws that are grandfathered under the law is moved back:
-Any state chemical regulation is permanently protected from preemption that is in effect before August 1, 2015. Previously, the grandfather date was January 1, 2015.

The amendment further clarifies pre-emption to state that:
-All state chemical disclosure laws are permanently protected from pre-emption.
-State clean air and clean water laws are not pre-empted.

State co-enforcement
-States will be allowed to co-enforce the law with condition that penalties can be collected from either the federal government or a state, but not both.

Regarding the designation of a chemical as “low priority” (not a significant health or safety threat), the amendment would allow:
-90 days of public comment for all listing decisions.
-Any member of the public to challenge a low priority decision within 60 days of listing.

The amendment lowers the bar for when a chemical can be designated as “high priority” (a significant health and safety threat). It states that:
-EPA shall designate a chemical as high priority based on “significant” [rather than “high”] hazard rather and “significant” [rather than “widespread”] exposure, and may designate a chemical as high priority if it has either characteristic.

For chemicals that are “persistent, bioaccumulative and toxic” (PBT):
-EPA must give preference to PBTs on the TSCA Work Plan for selecting chemicals on the initial high-priority list.
-Whether a chemical is a PBT is a required consideration for all high priority designations.
-EPA is required to select restrictions in risk management for PBTs that reduce exposure “to the maximum extent practicable”

The amendment requires expedited action on certain well-known chemicals. It states that:
-EPA will incorporate into safety assessments and determinations existing information regarding hazard and exposure published by other federal agencies or the National Academies, with the objective of increasing the efficiency of the safety assessments and determinations.

“Unreasonable risk” in the law
-In relevant places in TSCA, as amended by the bill, the term “unreasonable risk” is either clarified to exclude consideration of costs or other non-risk factors, or the word “unreasonable” is dropped.

The amendment clarifies the deadline for implementing restrictions and prohibitions by stating that:
-Compliance deadlines for risk management rules are to be “as soon as practicable.” Bans and phase-outs are to be implemented “in as short a period as is practicable.”

Imports section deleted
-The amendment deletes the imports section in order to maintain strict liability on importers that violate TSCA.

Industry petitioned chemicals — In addition to high-priority chemicals designated by EPA, manufacturers can petition EPA to designate additional chemicals for safety assessments and determinations.
-The industry would pay 100% of the cost of the assessment.
-There is no high priority pause whatsoever for Industry Petitioned Chemicals.
-These chemicals are in addition to the high priority list and do not limit the number EPA otherwise designates.
-These chemicals can amount to a minimum of 25% and a maximum of 30% of the cumulative total number of high priority chemicals. (So if EPA is evaluating 25 High Priority Chemicals, there could be an additional 6 to 8 industry-petitioned chemicals, which would allow EPA to review more chemicals than their resources would otherwise allow.)

Throughput of EPA work plan chemicals
-For chemicals that EPA has already identified as high-risk, manufacturers can petition for those chemicals to move to a safety assessment and determination, and pay 50% of the cost. EPA has full discretion to approve or deny these industry petitions.

Animal testing
-For the purposes of TSCA submissions to EPA, industry must look to scientifically reliable alternatives first before conducting new animal testing.