Center for Environmental Health Opposes the Chemical Safety Improvement Act of 2013 (Lautenberg/Vitter S.1009) Unless Substantial Changes Are Made to Protect the Health of American Families

The CSIA calls on the Environmental Protection Agency (EPA) to review chemicals and develop regulations as appropriate, considering the chemicals’ applications and toxicity.  This is an important and major undertaking.  Unfortunately, the law fails to establish clear deadlines and timetables for this crucial task, and experience has shown that environmental laws without such deadlines languish and ultimately fail.  For example, EPA has still not completed its assessment of the toxicity of dioxin (one of the most toxic chemicals known to science).  This assessment began in 1994 and almost twenty years later, it has still not been completed.  As written, the CSIA contains loose standards and vague wording that will allow industry to tie regulation of dangerous chemicals up in the courts for years to come.

Absent clear deadlines and ambitious schedules, the CSIA creates a framework for precisely the same inaction we currently see under TSCA.

The CSIA Must Explicitly Preserve the Legal Authority of States to Protect their Residents from Toxic Chemicals

If passed, industries will argue that the CSIA preempts state regulation of toxic chemicals in at least four significant ways:

  1. Under the CSIA, once EPA has made a “safety determination” regarding a toxic chemical, all state laws restricting the use or distribution of that chemical in commerce could be preempted.  If, for example, EPA in its review of the strong neurotoxin lead decides to ban lead in ammunition, but defers action on other uses of lead, industry will argue that California’s Proposition 65 can no longer allow the state to regulate lead in toys, candy, jewelry, or any product.  Further, all existing Proposition 65 consent judgments mandating that consumer products comply with Proposition 65’s lead limits could be rendered unenforceable.  The CSIA could similarly preempt other laws that states have adopted to protect their residents from toxic chemicals. Once EPA acts on BPA, state laws that protect children from bisphenol A (BPA), a hormone disrupting chemical still often found in baby products such as pacifiers and formula containers would be vulnerable.  Under the CSIA, if EPA issues a safety determination requiring that BPA be phased out over time, industry will argue that this action preempts all state laws banning BPA in baby products, including New York’s groundbreaking BPA ban.  The same fate would likely befall laws prohibiting the use of BPA in cash register receipts, such as Suffolk County’s innovative ban on these receipts.  These are just a few of countless examples of how the CSIA could hobble state and local efforts to protect families from toxic chemicals.
  2. Once EPA puts a chemical on a “low-priority” or “high-priority” list, all new state restrictions on the use or distribution of that chemical in commerce could be preempted in their entirety.  This means that state laws such as California’s Proposition 65 could no longer be used to regulate any new chemical introduced by industry into the market once EPA puts that chemical on a list, whether low- or high-priority.  Since there are no clear deadlines or timetables for action, the EPA can put the chemicals on the list, fail to take action for 20 years, and effectively tie the hands of state and local governments from protecting their residents from the chemical in the meantime.
  3. Once EPA requires information or testing regarding a chemical, all state laws that are “reasonably likely to produce the same data or information” could be preempted by CSIA.  For example, the CSIA’s preemption provisions may prevent California’s Department of Toxic Substances Control from fulfilling its responsibilities under the state’s Safer Consumer Products regulations – a pioneering effort to protect people’s health and strengthen the state’s economy.  These include the responsibility to provide information to consumers, to restrict certain chemical-consumer product combinations, to create requirements relating to the end-of-life of products that contain toxics, and more broadly to promote safer chemistry and engineering.  The CSIA could similarly prevent state agencies in Washington from fulfilling their obligation under the state’s Children’s Safe Products Act to obtain data about chemicals in children’s products to inform parents which products contain toxic chemicals. 
  4. People could be prevented from recovering monetary relief and/or equitable remedies under state tort law when they are injured by exposure to a chemical about which EPA has made a “safety determination.”  In addition, a person injured by a toxic exposure after a “safety determination” may be prevented from obtaining a remedy under tort law if EPA determines the chemical meets applicable safety standards for certain uses.  For instance, a person injured by a chronic, years-long exposure to a toxic chemical deemed safe by EPA would be unable to seek recourse under state tort law.

The CSIA’s sponsors must draft and insert into the bill clear and explicit protection of states’ rights to continue to take action and protect American families from toxic chemicals.

The CSIA Must Make Particular Efforts to Protect those Most Affected by Toxic Chemicals

A central moral failure of the CSIA is that it does not require particular protections for communities and populations that bear the worst brunt of toxic pollution or are more vulnerable to toxic chemicals.  These are developing children, pregnant women, and other people who are more vulnerable to harm from toxic chemicals, as well as workers and low-income communities populated predominantly by people of color who have suffered the worst harm from inadequate regulations, often for generations.

The CSIA’s sponsors must define “vulnerable populations” and “toxic hot spots” to reflect the unjust reality of chemical exposure today.  We urge the sponsors to amend the CSIA such that it requires EPA to regulate emissions and other industrial activities and reduce persistent, bioaccumulative toxic chemicals in these hot spots immediately. American families in our nation’s most disenfranchised communities deserve the same clean air, clean water, and other fundamental health opportunities as our nation’s most privileged communities.

The CSIA Must Require that EPA Review Sufficient Data before Deeming Chemicals to be “Of Low Concern”

The CSIA would allow EPA to deem chemicals to be of low concern without sufficient data to make such a determination.  In one of its more troubling provisions, the CSIA would also allow chemical companies to control which data that government bodies at the federal and state levels are allowed to review as they consider regulations on toxic chemicals.

Before EPA deems a chemical to be low priority, the agency should have adequate data to demonstrate that the chemical truly has a “reasonable certainty of no harm.”  The CSIA must require chemical companies to submit minimum information sets in a timely manner, equipping EPA to evaluate new chemicals and new uses of chemicals and to evaluate chemicals for prioritization.  It must also allow government bodies at all levels to make important regulatory decisions based on all available and credible data.

The CSIA Must Call for Immediate Action on the Most Dangerous Chemicals

Scientists and regulatory bodies worldwide have classified certain chemicals as persistent, bioaccumulative, and toxic (PBTs).  One of the key failures of TSCA is that it does not equip EPA to protect our nation’s families from PBTs or from other similarly harmful chemicals.  EPA’s inability to regulate asbestos is a tragic example of this failure.  Fixing TSCA will require that we give EPA the tools to protect our nation’s children from the worst chemicals by expediting action on PBTs and other chemicals of equivalent concern.

Instead, the CSIA requires that EPA undergo a prohibitively cumbersome and bureaucratic process in order to phase out dangerous chemicals.  This would undermine, long-overdue action to protect families from toxic chemicals. The CSIA must reduce red tape and assign top priority to the swift regulation of the most dangerous chemicals.

The CSIA also adopts a vague safety standard that will not guarantee that chemicals entering the marketplace and used in manufacturing are actually safe.  To protect American families, EPA should follow the National Academy of Sciences’ assessment methods and rely on a more conservative standard of “reasonable certainty of no harm.”

The Health and Safety Information About Chemicals Must Not be Kept Secret from American Families

The CSIA would grandfather confidential business information (CBI) claims on products and chemicals made prior to the enactment of the bill.  Further, the bill does not require EPA to disclose the number and duration of CBI claims it grants to chemicals, making it difficult for families to know what chemical hazards they might be exposed to.  The CSIA also fails to require that EPA release the secret data at the end of the CBI protection period.  Given these flaws, it is troubling that the CSIA would simultaneously limit health care professionals’ access to information about the identity of secret chemicals, even in medical emergencies.

CSIA must protect people’s right to know which chemicals they are exposed to.

Next Steps

While the Center for Environmental Health is concerned about the deep flaws in CSIA, we are pleased to see that Washington is taking seriously the issue of TSCA reform, and we note with cautious optimism that this may be an opportunity to improve the law and meaningfully protect our nation’s families from toxic chemicals.

We also note with deep sadness the passing of Senator Frank Lautenberg, a stalwart public servant and inimitable champion for public health.  Our hearts remain with the Senator’s loved ones during this difficult time.

We look forward to working with leaders in the Senate and the Congress to repair CSIA in a way that truly honors the legacy of Senator Lautenberg – by truly protecting the health of American families.

Tags: ,