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Landmark toxic chemicals act nears passage

Updated: Jan 6, 2022

"The federal government does not even know how many industrial chemicals are in use, much less whether they are safe."

May 23, 2016

WASHINGTON — The House is expected to pass landmark environmental legislation Tuesday that for the first time since Gerald Ford was president would toughen regulation of thousands of industrial chemicals in everyday use, many of which currently receive little federal scrutiny.

The Toxic Substances Control Act would be the biggest change to a major environmental law since the Clean Air Act was amended in 1990. It has overwhelming bipartisan support — rare for any bill nowadays, but almost unheard of for a major environmental law in a Republican-controlled Congress — and is expected to pass the Senate by the end of the week before being sent to President Obama to sign into law.

The bill rewrites a 1976 toxic chemicals law that has left the Environmental Protection Agency with so little authority that the agency was unable to ban even asbestos, a highly carcinogenic substance that has caused thousands of deaths and is still used in many imported products.

As a result, California and other states have imposed their own regulations. As state rules proliferated, along with public doubts about the safety of chemicals commonly used in everyday household products, the chemical industry joined with environmental groups to seek a rewrite of the law.

The new law would mandate safety reviews by the EPA for all chemicals currently in active commerce and require new chemicals to be deemed safe before they are allowed on the market. It also would make more information about chemicals available to the public, much of which has been kept confidential — even from health professionals — by companies claiming trade secrets.

Boxer’s legacy

More than a decade in the making, the legislation promises to be among the signature legacies of retiring Sen. Barbara Boxer, the California Democrat who blocked a version three years ago and fought ferociously through last weekend to ensure that federal law preserves California’s tougher regulatory laws.

As part of her push, Boxer in 2012 brought San Francisco firefighters to testify in Washington about their exposures during fires to toxic flame retardants used in couches and other furniture that left them with rare forms of cancer.

The legislation promises to be among the signature legacies of retiring Sen. Barbara Boxer.

Damian Dovarganes/Associated Press

If it becomes law, the bill gives states an 18-month window to regulate chemicals on their own. It also grandfathers in California’s three-decade-old Proposition 65, a law that requires the state to update and publish a list of chemicals known to cause cancer or birth defects or other reproductive harm.

If the EPA fails to regulate a hazardous chemical within 31/2 years, states would be allowed to move ahead on their own to regulate the chemical. The bill also assigns a priority for the EPA to review toxic chemicals that are known to persist in the environment and accumulate in the food chain, including in the human body.

The bill’s passage in the House was ensured when Minority Leader Nancy Pelosi, D-San Francisco, gave her support after a weekend of negotiations that gave states additional latitude to regulate hazardous chemicals. One of the changes will allow California to proceed with pending regulation of chlorinated Tris, a flame retardant commonly used in furniture upholstery.

‘Better than current law’

At a news conference last week announcing a tentative agreement, Boxer said the compromise is weaker than she would have liked, “but where it is right now is in my view better than current law, and I certainly could not say that for a very long time.”

“I stopped this bill dead for years,” Boxer said.

At the news conference, she and other Democrats from the party’s most ardent environmental wing stood side by side with Republicans who have been their chief antagonists, including Sen. David Vitter of Louisiana, home to much of the nation’s chemical industry.

Environmental and public health groups are divided over whether the bill is tough enough.

Andy Igrejas, national campaign director of Safer Chemicals, Healthy Families, a coalition of 450 environmental and health groups, is neither endorsing nor opposing the legislation. An estimated 30,000 or so hazardous chemicals that were grandfathered in the original 1976 legislation, he said, remain on the market, and the EPA will be required to review about 20 of the worst ones within three years.

“The pace is slow,” Igrejas said. “We’re not going to be leading the world in chemical regulation.”

But even if a small number of the most hazardous chemicals is regulated, the exposure to them could be reduced for “millions and millions of people,” he said.

Richard Denison, the lead senior scientist at Environmental Defense Fund who was deeply involved in negotiating the bill, agreed that reviewing the chemicals will be a slow process.

Nonetheless, Denison said the bill “gives EPA new tools, authority and a mandate to actually review and establish the safety of all new chemicals and all existing chemicals.”

“That’s a big paradigm shift, away from a passive system where unless EPA finds a problem, basically the chemical can stay on the market or come onto the market,” he said.

Difficult task

Denison noted that the federal government does not even know how many industrial chemicals are in use, much less whether they are safe, but that the new legislation will begin to correct that.

Those analyses promise to be a mammoth undertaking. The bill assesses industry user fees to defray some of the cost, but sustained attacks by Republicans on the agency’s budget could slow the process further.

Scott Faber, head of government affairs for Environmental Working Group, which opposes the legislation, said the bill marks an improvement, in that companies would no longer be allowed to introduce a new chemical into commerce unless EPA says it is safe. “But that says more to how broken the current law is than anything else,” Faber said.

He worries that the bill calls for half the money that’s needed to assess all the chemicals and may not be strong enough to survive court challenges. Other groups criticized what they viewed as a weakening of EPA authority over imported products.

Cal Dooley, a former House Democrat representing Fresno, now chief executive of the American Chemistry Council, representing the industry, said the industry has been “concerned with the decline in public confidence” in chemical safety and praised the breadth of support for the new legislation as “almost unprecedented.”

“The fact that we have ... Nancy Pelosi and Sen. Boxer supporting this legislation as well as support from industry,” Dooley said, “is a testament that we’ve struck that appropriate balance.”

Carolyn Lochhead was the Washington correspondent for the San Francisco Chronicle, where she covered national politics and policy for 27 years. She grew up in Paso Robles (San Luis Obispo County) and graduated from UC Berkeley cum laude in rhetoric and economics. She has a masters of journalism degree from Columbia University. Twitter: @carolynlochhead


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