Will Congress Finally Reform Chemical Safety Policy After 37 Years?

UNITED STATES - JUNE 20: Sen. David Vitter, R-La., speaks at a news conference outside of the Capitol to oppose the immigration reform bill in the Senate. (Photo By Tom Williams/CQ Roll Call)
UNITED STATES - JUNE 20: Sen. David Vitter, R-La., speaks at a news conference outside of the Capitol to oppose the immigration reform bill in the Senate. (Photo By Tom Williams/CQ Roll Call)

WASHINGTON -- The EPA's decision late last week to withdraw two proposed changes to chemical safety and disclosure rules is another sign that the country's main law governing what chemicals corporations can sell and how much they have to tell the public about their safety isn't working, advocates said Tuesday. But in the meantime, advocates also said, the White House remains the biggest hurdle to updating the current law already on the books.

The EPA withdrew two rules related to the Toxic Substances Control Act (TSCA), a 1976 law governing chemical policy in the U.S. One of the proposals would have added bisphenol A, eight kinds of phthalates, and several types of flame-retardants to a list of "chemicals of concern" that would be subject to more scrutiny. The other would have limited the ability of companies to claim information about chemicals in their products as confidential business information.

The EPA sent the two rules to the Office of Information and Regulatory Affairs (OIRA), a division of the Office of Management and Budget in the White House, in 2010 and 2011, respectively. OIRA is supposed to review the rules within 90 days. The EPA said that the rules were "no longer necessary" in a statement on Friday, pointing to other work it has done on toxics. But environmental groups were quick to pounce on the decision, blaming OIRA for stopping up the rulemaking process in response to pressure from the chemical industry.

"I don't think anybody is blaming EPA. The reality was, once [the rules] got to the White House, they were not going anywhere," said Daniel Rosenberg, a staff attorney at the Natural Resources Defense Council. "Both of those were not even final rules. The White House didn't even let them go out for public comment. That's the reality -- the Obama administration has been catering to the chemical industry since day one on this issue."

The latest TSCA development has prompted a renewed interest in reforming the law. Environmental and public health groups have long raised concerns that TSCA, at 37 years old, is outdated and ill-suited to regulating the more than 83,000 chemicals on the market today. For one, it does not require companies to prove that substances they release into the air or water are safe before they are brought to market. And in most cases, companies don't even have to reveal what's in their products before selling them.

On Tuesday, the Environmental Defense Fund, Earthjustice, the Union of Concerned Scientists and the League of Conservation Voters sent a letter to Sens. Richard Blumenthal (D-Conn.) and Orrin Hatch (R-Utah), the chairman and ranking member, respectively, of the Senate Judiciary Committee’s Subcommittee on Oversight, Federal Rights, and Agency Action, asking them to investigate what the coalition called a "rulemaking purgatory" at OIRA when it comes to TSCA. Rules dealing with chemical policy have sat at OIRA for an average of 300 days, the letter noted, much longer than the maximum of 90 days that the agency is supposed to take to review them.

Obama's first EPA administrator, Lisa Jackson, pledged in 2009 to strengthen U.S. chemical management policies and make information about chemical safety more transparent to the public. But several key regulatory changes proposed during Jackson's time at the EPA went to OIRA and were never seen again.

"The EPA has really tried to do what they can with a very limited law, and they've been almost completely blocked by the White House," said Rosenberg.

The EPA withdrawing the latest two rules wasn't exactly a surprise to advocates of reforming chemical policy in the U.S. "This was EPA trying to MacGyver some meaningful action from the toothpicks and bubble gum they have under TSCA, and it got shot down," said Andy Igrejas, the national campaign director of Safer Chemicals, Healthy Families, a coalition of environmental and public health groups calling for TSCA reform. OIRA, Igrejas said, is the "least transparent part of the federal government."

For the first time in decades, Congress might actually be in a position to overhaul TSCA. In May, Sens. Frank Lautenberg (D-N.J.) and David Vitter (R-La.) introduced bipartisan reform legislation, called the Chemical Safety Improvement Act. Lautenberg, who long considered reforming the law a top issue, died two weeks later. The last major action on the bill was a Senate Environment and Public Works Committee hearing in late July. Vitter's office said they had no updated timeline for what might happen next with the bill.

Since Lautenberg's death, Sen. Tom Udall (D-N.M.) has effectively taken up the bill for the Democrats. Jennifer Talhelm, a spokeswoman for Udall, said that his staff held meetings with other Senate offices, state representatives, non-governmental groups, and other stakeholders over the August recess. But, Talhelm said, they don't have a clear picture of the next steps for the legislation. "A lot more information has been gathered on the types of concerns that groups have with the bill, and we're in the process of considering changes or other steps to address them," she said. "I would expect that there will need to be a number of meetings before the senators begin crafting a new version of the legislation, but I expect that process will begin soon."

Ingrejas and other advocates said Friday's action does make it even more obvious that reform is needed. "If EPA is shut down in its attempts to use this law in ways that are meaningful, they really need to reform it," said Igrejas. "It redoubles the need to try and salvage the debate that's before the Environment and Public Works Committee."

Environmental and public health groups expressed concerns about the text as it was initially proposed in May, but seem to be hopeful that the bill could be amended to address them. "It's got serious problems," said NRDC's Rosenberg. But, he added, "We are supportive of working to see if it can be improved sufficiently."

But Marianne Engleman-Lado, a managing attorney at Earthjustice, said that last week's rule withdraw doesn't bode well for promises of transparency on chemicals from the Obama administration. "It's not like we're backing out of the reform process," said Engleman-Lado, "but it does give us pause about is anyone going to take reform seriously."

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