The buzzword about Congress these days is gridlock: the left and right are too far apart to get anything done, and compromise (at least among some) is now a dirty word. Yet in December, the U.S. Senate passed a major overhaul of one of America’s most outdated environmental and public health laws, the Toxic Substances Control Act. This follows House passage of a separate reform bill in June. No one can claim that the chemical spill in Charleston’s Elk River two years ago last month triggered reform. But surely, a public health disaster of such magnitude couldn’t go unnoticed, even in the tone-deaf halls of Congress.
As most West Virginians know, on January 9, 2014, roughly 300,000 residents in Kanawha and eight surrounding counties learned that 4-methylchyclohexane-methanol (MCHM), a chemical used to wash coal, was leaking from a broken storage tank along the Elk River and contaminating their drinking water. For days to weeks, residents couldn’t use their tap, and public health officials seemed confused about when it was safe to do so again. Why? Because almost no one had studied the impacts of MCHM on human health.
Like roughly 62,000 other industrial chemicals on the market, MCHM was “grandfathered in” when Congress passed the federal Toxic Substances Control Act in 1976, presuming that chemicals already in use were safe. With no mandate to study these chemicals, they remained a medical black box, holding a wealth of crucial information if only someone examined the contents.
By the time the Elk River spill occurred in 2014, just about everyone—public health officials, environmental groups, and even the chemical industry—already agreed that the law needed to be updated—that enormous loopholes left Americans exposed to tens of thousands of chemicals with unknown, but potentially dangerous, health impacts. The challenge was agreeing on how to fix it.
Today, that challenge remains—the Senate and House versions of reform differ considerably, and both bills have their strengths and weaknesses. But their almost unanimous bipartisan support suggests that 2016 will bring some sort of resolution. The question is whether congressional negotiators working out those differences will throw out the healthy baby (meaningful reform) and keep the dirty bathwater (concessions to the chemical industry) in the final version.
Searching for a Safer Road Ahead
First the good news. The Senate bill contains some critical improvements over existing law. Among them, it would explicitly require safety reviews for all chemicals currently in use, including those grandfathered in way back in 1976. It would prohibit the Environmental Protection Agency (EPA) from considering costs and other non-health factors when determining safety, unlike existing law which requires EPA to weigh costs against the risks to health. It eliminates the requirement that the EPA find the “least burdensome” remedy in order to restrict a chemical’s use—a provision that allowed industry groups to overturn the EPA’s ban on asbestos, a known carcinogen, in 1991.
Moreover, new chemicals under the Senate bill could enter the market only after the EPA determines they are safe. Currently, new untested chemicals simply enter the market 90 days after a manufacturer notifies the EPA they’ll be introducing them (about 700 new chemicals enter the market each year). Under existing law, the only way the EPA can require testing of these new chemicals is if it has some reason to think they might pose an unreasonable risk. That poses a catch-22, requiring the EPA to access data on a new chemical before it can order a company to collect such data. And testing can only occur after the EPA issues a formal regulation requiring such testing—a years-long process that rarely occurs.
The Senate bill would eliminate these hurdles. It would also make it harder for chemical manufacturers to hide information about chemicals from state and local governments, medical practitioners, first responders, and others who might need such information to treat patients or maintain public safety. Currently, much of that information remains hidden as “confidential business information.” The Senate bill also would respect many existing state laws passed over the years to fill the gaps in federal law, and would allow the EPA to collect fees from chemical companies to help cover the costs of reviews and regulation.
Now the bad news. Public health advocacy groups, such as the Safer Chemicals, Healthy Families Coalition (representing 450 organizations and businesses) warn that the Senate bill would make it harder for the EPA to prevent dangerous chemicals from being imported into the United States when they’re part of a product (such as in toys and furniture). They oppose the Senate bill’s process for prioritizing which chemicals to review first, fearing that designating some chemicals as a low priority means those chemicals will get only a cursory review. And they note that the Senate bill can block states from taking new action on a chemical until the EPA finishes its assessment, even if the state has concerns about that chemical’s risk.
The House bill is less ambitious than the Senate. Like the Senate bill, it would remove some of the major hurdles to public safety, such as the consideration of cost in determining a chemical’s risk. It also would allow the EPA to order testing of a chemical without issuing a formal regulation, and would ease the requirement that restrictions on a chemical be the “least burdensome” (the provision that doomed the asbestos ban).
But the bill fails to eliminate the catch-22 of testing: the EPA would still need to have some information that a chemical might pose a risk before it can order a company to collect information about possible risks. The bill doesn’t require the EPA to test existing chemicals, and it provides the EPA with fewer resources to conduct assessments than the Senate bill. Still, its more streamlined structure could facilitate implementation according to some.
Finding Common Ground
The Natural Resources Defense Council, a national advocacy group and member of the Safer Chemicals, Healthy Families coalition, doesn’t support either the Senate or House bill. Instead, it wants congressional negotiators to take the best of both. Although the Senate bill looks promising, “I think there are sufficient unknowns that we won’t really know whether it will be better or worse (than existing law) until several years into implementation,” says Daniel Rosenberg, a senior attorney with the group. “[We need] to see what the EPA does and what sorts of challenges the industry brings or the public-interest community brings, and how those play out in court.”
The Environmental Defense Fund is one of the few national environmental groups openly enthusiastic about the Senate bill. “The Senate bill is a comprehensive package,” says Richard Dennison, a lead senior scientist at Environmental Defense Fund. “It really does go through all the major sections of [existing law] and significantly update them. It’s a compromise. It’s not the bill we would have drafted from scratch. But we tried that for ten years and got nowhere because there was no Republican or industry support.”
One reason for the strong bipartisan support in Congress today undoubtedly is the intense lobbying by, and blessing of, the American Chemical Council—a trade association representing companies that manufacture and use the 80,000 industrial chemicals now on the American market. A stronger federal law could diminish the number of separate state laws springing up across the country to fill in federal gaps, thus ensuring the industry more uniform requirements for compliance. And it might help them address stricter European standards already in place.
West Virginia Senators Joe Manchin (D) and Shelley Moore Capito (R) reflect the broad bipartisan support for reform. They were co-sponsors of the Senate bill, and Manchin reportedly was instrumental in bringing together the bill’s original authors, then-Senator Frank Lautenberg (D–NJ) and Senator David Vitter (R–LA), in 2013 to work through their differences. In a press release after Senate passage, Manchin praised the result, saying: “After the 2014 Elk River chemical spill, I vowed to do everything in my power to ensure a similar accident would never occur again. Updating chemical safety laws is necessary to ensure we can properly manage toxic chemicals and prepare for the unlikely event of another accident.”
Necessary for sure, but just one step towards greater safety. The bills now must survive the challenging process of ironing out differences between Senate and House versions. Even if the final bill emerges with the strongest provisions intact, the EPA then faces the monumental task of reviewing tens of thousands of chemicals. Two years after the Elk River spill, progress on chemical reform is encouraging, but real change remains far downstream.
— Follow Amy on Twitter @AmyMatAm.