Sincere effort at bi-partisan progress; needs improvement to ensure adequate protection
We commend the bi-partisan group of Senators on the introduction of the Chemical Safety Improvement Act. We view it as a sincere effort to cut through Washington gridlock on the urgent issue of protecting the public from toxic chemicals.
However, we do not support the legislation in its current form. After an initial review, we urge the sponsors and Senator Boxer, Chair of the Environment and Public Works Committee, to strengthen the legislation in critical areas. These proposed improvements fit within the framework of the Chemical Safety Improvement Act and we offer them in the spirit of promoting bi-partisan cooperation to enact a program that protects public health and the environment, and drives innovation.
1) Protect Vulnerable Populations
The legislation requires the Environmental Protection Agency (EPA) to assess exposures of sub-populations to chemicals during the course of a safety assessment, but it does not explicitly require that safety determinations protect vulnerable populations from those exposures. This is a critical omission. The National Academy of Sciences and a large body of accepted science have shown that the developing child, pregnant women, and other groups are biologically more susceptible to harm from exposure to toxic chemicals. Some populations are also more vulnerable because of disproportionate exposure, as in the case of communities with a legacy of heavy chemical contamination. The legislation should define "vulnerable populations" and explicitly require that they be protected from aggregate exposure to high priority chemicals. In addition, the safety standard itself needs more clarification to ensure it is strictly health-based and protective.
2) Preserve State Authority
The preemption provisions in the bill would largely prevent states from taking action to address both "high priority" and "low priority" chemicals, even in the absence of federal regulation to protect the public. The waiver provisions included to address these concerns are insufficient and will likely prove cumbersome in practice. Longstanding and important state protections, including California’s Prop 65 law, could be at risk of being preempted. State and local authority to inform and protect the public should be explicitly preserved.
3) Expedite Action on the Worst Chemicals
The legislation attempts to separate the decision about the health and environmental risks of a chemical from the economic and social decisions over how best to manage those risks. (The co-mingling of these decisions was a key failure of the Toxic Substances Control Act.) However, the legislation partially undermines that critical reform by requiring extra red tape before the EPA can phase out a chemical (as compared to other risk management measures.) As the EPA will only want to pursue this option for the very worst chemicals, these provisions could have the perverse impact of slowing down action on those chemicals.
The failure of our current policy was sealed when the EPA was prevented from banning asbestos—one of the world's most notorious substances—after a lengthy rulemaking and subsequent court battle. Congress should not repeat the drafting mistakes that led to that decision in this legislation.
4) Establish Deadlines and Timetables
The Chemical Safety Improvement Act generally lacks deadlines and timetables for EPA to complete a minimum number of assessments and safety determinations. The history of environmental laws is that they achieve their clearest results with such provisions. The sponsors and the committee should develop clear deadlines and minimum work requirements to ensure that EPA has the incentive and resources it needs to implement the new law.
5) Require Adequate Data to Prioritize Chemicals
Chemicals must have adequate data for evaluation before they are prioritized and can be deemed of low concern to the public. The legislation should specify that a chemical should only be designated as low priority in the presence of information sufficient to demonstrate a low risk to human health and the environment.
We look forward to working with the bill sponsors and the Environment and Public Works Committee to make these improvements and to craft a law that can enjoy broad support from the health and environmental communities as well as labor and business. We may ask for additional clarifications or improvements as our analysis of the bill continues.