Selected category: TSCA Reform

Will we take this best chance ever to fix the law that helped bring about DuPont's PFOA debacle?

Richard Denison, Ph.D.is a Lead Senior Scientist.

A remarkable exposé in yesterday’s New York Times Magazine documents the “brazen, decades-long” withholding by DuPont of mounting evidence of widespread exposure to and health effects from one of its signature chemicals (nicknamed PFOA) used in manufacture of its line of Teflon brand products.

The article is compelling in many respects, not the least of which is its scathing indictment of the federal laws that are supposed to protect Americans from toxic chemical exposures.  In particular, the article highlights the deep failures of the Toxic Substances Control Act (TSCA) – now limping into its 40th year of existence without ever having been substantially amended.  TSCA is the law that – in principle – regulates most uses of PFOA and other so-called “industrial chemicals,” thousands of which are widely used in everyday consumer products and materials ranging from household cleaners to furniture to paint to electronics.

The article’s focus on TSCA is more than justified:  PFOA is one of 62,000 chemicals that were already on the market when TSCA passed in 1976.  All of these chemicals were “grandfathered” under the law, effectively presumed safe without any requirement that they be tested or reviewed for safety.  And while, as evidence of harm and widespread exposure mounted, the Environmental Protection Agency (EPA) did conduct a review of PFOA (which more than a decade later is still only in draft form), its authority under TSCA is so weak that it has not even attempted to use that authority to restrict any uses of the chemical, instead having to negotiate a gradual voluntary phase-out.  Indeed, EPA hasn’t tried to regulate any existing chemical under TSCA since 1991, when a court threw out its regulation of the known killer asbestos, on the grounds that EPA had not met its burden of proof of harm under TSCA.

Not mentioned in the article, however, is that for the first time ever Congress is on the verge of finally reforming TSCA.  Reform bills have passed both the Senate and the House, and negotiations toward a final reconciled bill are expected to get underway any day now.

While no single law could by itself have prevented the tragic story of PFOA from unfolding, provisions of one or both bills would go a long way to help prevent such events from happening again.  Let me mention some of the most important:   Read More »

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Senators clear the air on “early preemption” under the Senate TSCA reform bill

Richard Denison, Ph.D.is a Lead Senior Scientist.

In the immediate aftermath of the Senate’s unanimous passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) on December 17, 2015, three of the key Democratic cosponsors of that bill – Senators Whitehouse (RI) , Booker (NJ) and Merkley (OR) – participated in a colloquy to discuss one of the most contentious – and widely misunderstood – provisions of the Senate bill:  the extent to which it would preempt states from acting during review of a high-priority chemical by the Environmental Protection Agency (EPA).

That colloquy ran in the next day’s Congressional Record.  I am including it at the end of this post in its entirety; it explains the Senators’ successful effort to limit preemption of state authority in the final bill – including by narrowing the conditions states must meet to act during EPA review of a chemical essentially to constraints on state authority already imposed by the U.S. Constitution.  The Senators conclude:  “Restoring the ability for States to protect their citizens while EPA assesses the safety of chemicals was one of the primary goals of our work to improve this bill and that has been accomplished under section 18(f)(2) of S. 697, as reported by the Environment and Public Works Committee. We believe this does, within the limits imposed by the Constitution.”

Although this preemption provision was narrowed in negotiations led by those Senators this past April, it is still being widely mischaracterized.   Read More »

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Links to essential reading on Senate and House TSCA reform legislation

Richard Denison, Ph.D.is a Lead Senior Scientist.

On December 17, 2015, the full Senate passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697, the Lautenberg Act), which would amend the nearly 40-year-old Toxic Substances Control Act (TSCA).

The House of Representatives already passed its TSCA reform bill in June, the TSCA Modernization Act of 2015, H.R. 2576.

Next up in the New Year will be efforts to reconcile these two bills.  In anticipation of this, I am posting here updated analyses of the two bills that examine how and to what extent they would address key flaws in TSCA.  These analyses include:

  • brief and detailed side-by-sides of TSCA and the two bills,
  • a comparison of how the bills deal with the contentious issue of preemption of state authority,
  • a comparison of how well the bills meet the Administration’s principles for TSCA reform, and
  • an earlier blog post on the importance of understanding which chemicals are in use today.

All of these materials (including this post) are available at blogs.edf.org/health.

ANALYSES:

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Let’s savor this moment: Senate passes legislation representing real chemical safety reform

Richard Denison, Ph.D.is a Lead Senior Scientist.

[Links to: the Senate-passed bill and a staff-prepared summary and list of changes made since committee markup.]

A huge step was taken tonight toward bringing this country’s chemical safety law into the 21st century:  The Senate (at last!) brought the Lautenberg Act to the floor by unanimous consent and passed it without objection by a voice vote.  While this outcome was not surprising, given that 60 Senators had already co-sponsored the legislation, it took a long time to get here and tonight’s vote is an historic moment that merits reflection.

I’ve been working for better chemical safety policies, including meaningful and comprehensive reform of the Toxic Substances Control Act (TSCA), for most of my career at EDF.  And for much of that time I found myself and my organization virtually always at odds with the chemical industry and often with the Environmental Protection Agency (EPA).  When I started, I’m not sure I could ever have predicted either how long it would take – or how strongly bipartisan the support for TSCA reform would become.

The twists and turns along the way toward today’s Senate vote are too many to recount.  Suffice it to say we wouldn’t be here without the tremendous, sustained work of a group of Senators and their staff on both sides of the aisle who dedicated themselves to steadily moving this legislation forward while improving it in response to the concerns of literally hundreds of stakeholders.  The key has been the active engagement of and by an ever-enlarging circle of Senators and stakeholders, who saw the potential for a public health and environmental breakthrough and had the courage to work toward a compromise bill even in the most partisan of climates.

EDF’s benchmark for judging the strength of any legislative proposal has been the extent to which it addresses the many flaws in current law.  The Lautenberg Act, while clearly a compromise, still unequivocally meets that test – and has the level and diversity of support needed for the bill to actually become law.

Our press release, factsheets and side-by-side comparison of the Lautenberg Act to current TSCA summarize why we believe it represents the meaningful, comprehensive reform for which we’ve been working for so long and that American families deserve.

Of course, the work to get TSCA reform is not done.  The task of reconciling the comprehensive Senate bill with the more skeletal TSCA Modernization Act that breezed through the House in the summer now begins.  EDF strongly believes this should not be an exercise in merely splitting the differences.  Rather, we will be relentless in working to ensure that any bill signed into law meets key health protection objectives and delivers real reform.

Our top-ten list of objectives is as follows:

  1. Primary focus on chemicals that EPA, not industry, deems to be of highest priority
  2. Affirmative safety finding before a new chemical can enter the market
  3. No preemption of state authority triggered by EPA actions on new chemicals
  4. Dedicated user fees to defray costs of all EPA chemical reviews, not just those industry selects
  5. Full exclusion of cost considerations from all EPA determinations relating to unreasonable risk
  6. Elimination of TSCA’s Catch-22 requiring EPA to first show evidence of risk to require testing
  7. Deadlines for compliance with, and elimination of a cost-benefit balancing requirement from, EPA chemical regulations
  8. Authority for EPA to act if another agency to which a risk is referred fails to take timely action
  9. EPA review of confidential business information (CBI) claims, both past and future, and mandatory access to CBI by states
  10. No allowance for chemical identity in health and safety information to be claimed CBI

But it’s worth savoring the present moment, brought to all of us by a rare amalgam of political risk-taking and courage, willingness to seek common ground and compromise, dedication to one’s key principles while acknowledging the legitimacy of others’, and countless days, weeks and months of plain old hard work.

 

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It’s not ‘either/or’

Richard Denison, Ph.D.is a Lead Senior Scientist.

A recent column in the New York Times focused on some differences that have surfaced inside the environmental community during the long fight for federal chemicals policy reform. I’d like to write today about what we have in common, and how our differences can make us stronger—because I don’t want anyone to be left with the false impression that EDF believes there is only one strategy for environmentalists to pursue on the road to reform.

While we believe our approach of bipartisan engagement has been effective in moving and improving legislation to reform the Toxic Substances Control Act (TSCA), we also understand and appreciate the strategies employed by other groups.  Principled opponents of legislative proposals have helped to identify legitimate concerns and to pressure lawmakers to address those concerns.  Collectively, these varied efforts have yielded a strong bipartisan Senate bill that will advance protections for public health and the environment.

EDF believes that the longstanding efforts of many state governments and state- and local-based advocates have also been essential to get us to where we are today.  These efforts have both directly addressed risks posed by toxic chemicals, and driven the chemical industry to the negotiating table on TSCA reform after years of complacency.

As essential as that state-level work has been and remains, we believe it is not sufficient.  We must also secure a strong federal system that provides EPA with the authority and resources needed to establish nationwide protections from chemical risks.  From the beginning, one of the biggest challenges in strengthening TSCA has been to strike an appropriate balance between state and federal authority.  EDF was clear early on that initial bipartisan legislative proposals were far too sweeping in their preemption of state authority (see, for example, pages 1 and 8 of my 2013 testimony on the Chemical Safety Improvement Act).  For the past two and a half years, we have worked diligently to press lawmakers to narrow that preemption and retain a strong role for states, while preserving the solid bipartisan support that is essential for getting a bill to the President’s desk.

While we have supported the Lautenberg Act, we have also fought for improvements in the bill.  As improvements were made, 60 Senators, including progressive Democrats like Sens. Whitehouse and Markey, have come to support to the bill.

Getting a strong TSCA reform bill enacted into law has demanded, and will continue to demand, input from a broad set of stakeholders. Differences in strategy and approach can strengthen, rather than diminish, that outcome.

 

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Sens. Dick Durbin and Ed Markey Announce Support for the Lautenberg Act

EDF Action Statement on Key New Support for Senate’s Chemical Safety Legislation
Sens. Dick Durbin and Ed Markey Announced Support for the Lautenberg Act

Washington, D.C. (October 2, 2015) – Today Senators Dick Durbin (D-IL) and Ed Markey (D-MA) announced their support for the Lautenberg Act, Senator Udall’s comprehensive legislation to fix America’s primary chemical safety law, the Toxic Substances Control Act (TSCA).

Elizabeth Thompson, President of EDFAction commented on today’s announcement:

“Today’s announcement from Senators Durbin, Markey and Udall is another major step forward in securing comprehensive legislation to ensure chemical safety. Their hard work has further strengthened a bill that is now poised to earn huge support from both sides of the aisle in the Senate. Since Frank Lautenberg’s death more than two years ago, Sen. Udall has worked tenaciously to shepherd the Lautenberg Act through the legislative process. Sens. Markey and Durbin are the latest Senators to roll up their sleeves and work to both strengthen the bill and keep it moving. Today we are even closer to a new law that can finally protect public health and the environment from harmful chemicals.”

Sens. Durbin and Markey announced their support along with changes to the bill made since the Committee markup in March.  The bill that now appears headed for the Senate floor is the result of more than two years of negotiations led on the Democratic side by the chief sponsor Sen. Tom Udall (D-NM) as well as Sens. Tom Carper (D-DE), Sheldon Whitehouse (D-RI), Jeff Merkley (D-OR) and Cory Booker (D-NJ).  These members have worked with the chief Republican sponsor Sen. David Vitter (R-LA) and EPW Chairman Jim Inhofe (R-OK).  With the additional support of Sens. Durbin and Markey, it is clear the bill is primed to receive overwhelming support in the Senate. Reports indicate Majority Leader Mitch McConnell may bring the bill to the Senate floor any day.

 

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