Did you know that nearly 80,000 chemicals are currently used in the United States, but the U.S. Environmental Protection Agency (EPA) has only performed a safety assessment of 200 and has only issued partial restrictions for five of these substances? This illustrates how the nation's primary environmental law on toxic substances, the Toxic Substances Control Act of 1976 (TSCA), has failed to protect Americans from exposure to dangerous chemicals. On July 31, the Senate Committee on Environment and Public Works hosted a hearing to discuss the law's failures and hear from witnesses about the strengths and weaknesses of proposed legislation introduced by the late Sen. Frank Lautenberg (D-NJ) and Sen. David Vitter (R-LA) this past May.

At the hearing, several panelists addressed concerns that the bill, the Chemical Safety Improvement Act, threatens to override state and local chemical regulations that protect health and the environment without first putting in place a federal standard or setting a deadline by which EPA must take action. Michael A. Troncoso, Senior Counsel to the Attorney General of California, testified that the bill threatens California's Proposition 65, which requires companies to inform consumers about significant quantities of certain toxic chemicals contained in products or building materials, as well as significant releases into the environment.

Troncoso and panelists from Washington State and West Virginia agreed that meaningful TSCA reform should authorize EPA to issue a nationwide minimum standard while allowing states the option to adopt stronger standards. Vitter assured the committee and panelists that he is working to revise the preemption provisions in the legislation, but it remains unclear whether the changes will fully address these concerns.

Witnesses also identified ambiguity in the bill's language on the safety standard EPA must employ when deciding whether to label, restrict, or outright ban a chemical. The current standard is widely believed to have fatally weakened TSCA, but the proposed Lautenberg-Vitter bill only removes part of the troubling language, leaving it unclear whether EPA would still be required to perform cost-benefit analysis when deciding how best to reduce an unreasonable health or environmental risk.

Thomas McGarity, Professor of Law at the University of Texas at Austin, explained that "Congress could eliminate the ambiguity (and the need for more litigation) . . . . [by] [r]eplacing the 'unreasonable risk' test for a safety with a more protective test like the 'reasonable certainty of no harm' test used in the Food Quality Protection Act and the Food, Drug and Cosmetics Act."

McGarity also highlighted concerns about a provision that would allow state courts to admit EPA safety determinations as conclusive evidence in civil and criminal trials. If EPA found a chemical to be safe, the court could not conclude otherwise. McGarity called this "a gift of partial immunity to companies that are fortunate enough to have their chemicals declared safe by EPA."

Several witnesses testified about how the legislation fails to give due consideration to vulnerable populations that may be particularly susceptible to chemical exposures, such as children, developing fetuses, or those who may be disproportionately exposed, such as low-income communities near toxic facilities. Ken Cook, President of Environmental Working Group, declared that "[i]gnoring young, weak or poor Americans and people already exposed to toxic pollution is a glaring omission." Dorothy Felix, President of Mossville Environment Action Now, emphasized how "[n]o one in this country should be denied the right to live in a healthy environment."

The committee and all the witnesses who testified agreed that the existing toxic substances law is outdated and in desperate need of reform. But witnesses reminded the committee that the existing law and the proposed reform bill contain several other flaws, such as inadequate access to confidential business information (CBI), which must be addressed by any reform legislation that moves forward. Other needs include more research on minority and low-income populations disproportionately impacted by hazardous chemicals ("hot spots") and a requirement for EPA to identify, publish and update a list of, and develop plans to assist those communities hard hit by toxic chemical exposures.

On the same day as the hearing, July 31, Attorneys General of 9 states submitted a letter to Barbara Boxer (D-CA), the chairwoman the committee, expressing their shared concern that the preemption provisions in the Chemical Safety Improvement Act “seriously jeopardize public health and safety by preventing states from acting to address potential risks of toxic substances and from exercising state enforcement powers.”  The letter came from the Attorneys General of California, Washington, Vermont, Oregon, New Mexico, Massachusetts, Maryland, Delaware, and Connecticut. 

UPDATE (08/5/2013): The letter argues that “[uniformity of regulation should not be achieved by sacrificing citizens’ health and the environment.” Instead, the Attorneys General urge the committee to retain the preemption provisions under existing law, which would allow “states to act alongside the federal government to protect the health, safety, and welfare of their citizens.” Read the letter.