(Beyond Pesticides, November 22, 2013) The U.S. Environmental Protection Agency (EPA) Assistant Administrator of the Office of Chemical Safety and Pollution Prevention, James Jones, testified before the House Subcommittee on Environment and the Economy last week. The subject of Jones’ testimony: EPA’s informal observations on the proposed Chemical Safety Improvement Act (CSIA).
Introduced this past April, the CSIA seeks to reform the severely outdated and ineffective Toxics Substances Control Act (TSCA), the nation’s primary chemical safety law. Adopted in 1976, TSCA established an inventory and notification framework to monitor and assess the commercial production and importation of chemicals. Excluding large swaths of chemicals (such as pesticides and drugs) and placing the burden on EPA to demonstrate unreasonable risks to health or the environment, TSCA has done little to protect the public from or enable EPA to restrict the uses of the more than 84,000 chemicals in the marketplace today.
As one 2009 Government Accountability Office (GAO) report noted, “Since 1976, EPA has issued regulations to control only five existing chemicals.” Assistant Administrator Jones’s testimony was quick to point out TSCA’s many flaws, including the grandfathering in of 60,000+ chemicals without any kind of testing and EPA’s inability to require testing in the 37 years since the laws inception on little more than 200 of the more than 84,000 chemicals listed in the TSCA inventory.
Despite the recognition of these severe flaws and the need for reform, Assistant Administrator Jones was not prepared to offer EPA’s formal position on the proposed CSIA. Instead, he referred the Subcommittee to EPA’s “Essential Principles for Reform of Chemicals Management Legislation” and urged cautious consideration. Among other points, the main principles call for sound-science reviews based on risk-based criteria, manufacturer provided conclusions that new and existing chemicals are safe, risk-management decisions that account for sensitive subpopulations and availability of substitutes, timely priority chemicals assessments, green chemistry encouragement, increased transparency and public access to information, and sustained program funding.
Beyond Pesticides has long criticized the risk assessment methodology used by EPA under pesticide law, encouraging instead an alternatives assessment methodology with regulatory triggers to adopt alternatives and drive green-market solutions. While the EPA’s principles communicate support for improvement standards and consideration of several important issues —like accounting for sensitive subpopulations and encouraging green chemistry, they are too reliant on the failed risk-assessment methodologies and economic considerations to offer any meaningful progress.
The Preemption Divide
The principles also avoid the most pressing issue surrounding the CSIA: preemption. Environmental groups, including Beyond Pesticides, have raised serious concerns over the CSIA’s provisions that would prohibit judicial review of EPA’s designation of a chemical as “high” or “low priority.” Because of this provision, states would be unable to challenge EPA’s designation of a chemical in federal court and adopt and enforce new laws regulating these chemicals. CSIA would prevent states from regulating chemicals months or even years before a single protective federal regulation becomes effective, leaving an enormous gap in chemical safety protections and exposing human health and the environment to undue harm. The proposed legislation would also impose stricter waiver requirements, removing state’s abilities to impose bans or stricter regulations on specific chemicals without applying for and receiving a waiver from EPA.
State authorities, public health groups, and environmental advocates alike have cause for concern. Lobbying for preemption laws is a tried and true practice of the chemical industry. Arguing under the guise of coherence and a unified national approach, chemical industry leaders would prefer weaker, uniform standards that fail to account for localized needs and sensitive populations.
Although the EPA principles are mum on preemption, the Assistant Administrator’s testimony did seem to raise a neutral flag on the issue in his closing remarks: “We understand the concerns raised by many stakeholders regarding the appropriate role for states in addressing the risks of chemicals to which their citizens are exposed, and the EPA stands ready to provide technical assistance on this important issue.”
Beyond Pesticides continues to fight for strong, public protections against chemicals in our homes and environment and any form of legislation that would diminish the right of communities and individuals alike to establish protective laws, regulations, and standards.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.