There Are Big Flaws in Our Main Chemical Safety Law. The Shimkus Bill Won’t Fix Them.

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By Katie Weatherford, Regulatory Policy Analyst, Center for Effective Government

Every day, we are exposed to chemicals in our shampoo, body wash, hand sanitizer, toothpaste, lotion, and much more. We expect our government to ensure that the chemicals in products have been tested and are safe for us and our families.

The truth is that the U.S. Environmental Protection Agency (EPA) has only tested about 250 of the 84,000 chemicals registered for use in the U.S. Of those, it has imposed restrictions on only nine.

This is due to significant shortcomings in our country’s main chemical control law, the Toxic Substances Control Act (TSCA) of 1976.

This law is vastly out of date and needs to be updated and strengthened to protect our families, friends, and communities from toxic chemicals. Legislators on both sides of the aisle agree, but they have far different approaches to revising the law.

Draft TSCA “reform” legislation released by Rep. John Shimkus (R-IL) fails to make critical improvements necessary to keep families safe from harmful chemicals.

The Shimkus bill, released on April 7, addresses flaws in the current law by removing some of the hurdles EPA must clear before it can act to protect us against dangerous chemicals. However, ambiguous language in the bill opens the door for potential court challenges.

Under TSCA, EPA cannot restrict or ban a chemical unless the agency finds that it presents an “unreasonable risk” of harm to public health or the environment. The agency’s finding must take into consideration the benefits of the substance, the availability of substitute chemicals, and the costs and benefits of imposing restrictions on the chemical.

EPA must then assess possible regulatory alternatives and select the “least burdensome” requirement, which means the agency must propose the least costly rule for the chemical industry, even if a slightly more expensive approach would provide greater benefits to public health and the environment. TSCA also subjects EPA decisions to judicial review under a strict “substantial evidence” standard, which led a court to overturn EPA’s 1989 rule banning cancer-causing asbestos. This means judges are reviewing scientific evidence to rule on whether to allow toxic chemicals to remain on the market.

The Shimkus draft retains the “unreasonable risk” and “substantial evidence” standards despite long-standing concerns by public interest advocates that these standards undermine the fundamental purpose of TSCA. The Shimkus draft does, however, remove the requirements that EPA consider costs or other non-risk related factors in evaluating a chemical’s risk and choose the least burdensome option. The bill also prohibits EPA from finding “no unreasonable risk” if the chemical poses a risk to only certain very vulnerable or highly exposed populations like children.

While these changes are a step forward, “the discussion draft is ambiguous on how EPA is to incorporate cost and other factors into a risk management rule,” James Jones, Assistant Administrator of EPA’s Office of Chemical Safety and Pollution Prevention, testified at an April 14 hearing before the House Subcommittee on Energy and the Environment. He explained that requiring EPA to weigh costs and benefits when selecting rules is problematic. Costs can be easily expressed in dollars and cents, but this isn’t always the case with benefits. This can result in a bias against public protections.

Amplifying Jones’ concerns, Andy Igrejas, Director of Safer Chemicals, Healthy Families, told the committee that “cost considerations should be reserved for the question of how to mitigate the risk, not whether to mitigate it.” However, the discussion draft “would allow a major risk – such as a chemical that causes cancer or birth defects – to remain unmitigated if it was deemed too expensive to do so,” Igrejas explained. “This is a very different outcome than mitigating the risk in a cost-effective way.”

The chemical industry demands could dominate the risk evaluation process.

Another concern with the Shimkus bill is that it imposes completely different procedures for prioritizing risk evaluations based on whether the process is initiated by EPA or by a chemical manufacturer.

EPA can only begin to evaluate a chemical’s risks if the agency finds that the combination of a chemical’s hazard and exposure presents “an unreasonable risk” of injury to health or the environment. This means EPA could find itself in a catch-22 situation of having to find a potential for risk before it even begins to do a risk evaluation, Jones told the subcommittee.

On the other hand, if a manufacturer requests that EPA conduct a risk evaluation, the agency cannot deny the request. The bill lacks any mechanism to prevent industry from requesting an endless number of evaluations of chemicals that it knows present little risk, draining resources from other potential investigations of substances with the potential to cause the most harm.

The Shimkus bill would override many of the 250+ actions taken by states to protect citizens from chemicals.

The Shimkus bill would undo many state actions taken over the past 40 years to fill the gaps in federal protections and prohibit states from taking many future actions.

If EPA concludes that a chemical does not present an “unreasonable risk” and decides not to restrict the chemical, the bill would ban a state from taking action.

Even if a state had previously determined that the chemical is dangerous, or that the chemical presents a greater risk to its residents’ health than to the nation as a whole, the state would still be barred from restricting the chemical.

If EPA finds that a chemical is unsafe and chooses to restrict it, states could only adopt or enforce policies that are identical to those set by EPA.

Furthermore, the Shimkus bill would override state actions even if EPA’s evaluation only addressed risks from one source or hazard. As Igrejas explained in his testimony to the subcommittee, “the draft would prohibit a state from taking action on a chemical in a toy, for example, if EPA only examined the use of the chemical in furniture or looked only at acute health effects and not at chronic effects like cancer or reproductive toxicity.”

The Shimkus bill fails to specify where EPA will get funding to carry out the law.

Adding to concerns over the draft, the Shimkus bill fails to provide EPA with a dedicated source of funding for carrying out the law. Instead, fees from industry-initiated risk evaluations would go to the U.S. Treasury without any assurance they would be allocated to EPA for this work. The lack of dedicated funding for EPA undercuts efforts to update the law since the agency would lack the resources needed to implement the changes.

The Boxer-Markey Bill remains the model of meaningful TSCA reform.

The new draft Shimkus bill updates his previous discussion draft, which he circulated in the last session of Congress. It also follows two TSCA reform bills introduced in the Senate last month, one introduced by Sens. David Vitter (R-LA) and Tom Udall (D-NM), and another introduced by Sens. Barbara Boxer (D-CA) and Edward Markey (D-MA). While Shimkus’ latest draft is an improvement over his previous version, as well as the Vitter-Udall bill, the Boxer-Markey legislation still stands as the model for meaningful TSCA reform.

Rep. Shimkus should work to update his bill before the Subcommittee on Energy and the Environment markup tentatively scheduled for May 14. The subcommittee must ensure that the major concerns with the bill are addressed before sending it to the floor for a vote.

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Originally posted here.