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Legislation Intended to Improve National Chemical Policy Is Step Backward, Less Protective Than Status Quo

Statement of Susan Harley, Deputy Director for Public Citizen’s Congress Watch Division

Note: Today at 10 a.m., the U.S. Senate Environment and Public Works Committee is marking up the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697).

Legislation introduced today by U.S. Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) is a step backward in fixing our nation’s broken chemical policy. It does not advance reforms significant enough to make up for the bill’s shortcomings, which include strict limitations on the states’ power to regulate harmful chemicals in everyday products.

S. 697 is a missed opportunity to change America’s unworkable chemical policy, the Toxic Substances Control Act (TSCA). Instead of making it easier for the U.S. Environmental Protection Agency (EPA) to classify toxic chemicals and restrict harmful products, the Udall-Vitter legislation puts just as much effort into giving some chemicals a green light as it does keeping toxic chemicals off store shelves and out of our homes.

This is due to the bill’s newly created and very fuzzy “low-priority” rating – which would give certain chemicals a free ride by deeming them “likely to meet” safety standards and allowing companies to include those chemicals in products without the agency doing a proper safety assessment on them.

Further, the “low-priority” determination could not be challenged in court. The bill also would block the EPA from restricting harmful chemicals in multiple products at the same time. Forcing the EPA to determine whether each and every product containing a harmful chemical would pose a “significant source of exposure” is inefficient and creates more potential roadblocks that the chemical industry likely would try to maneuver to its advantage.

Historically, states have led the way with laws limiting the use of harmful chemicals in products. However, if passed, the Udall-Vitter bill would create a regulatory void wherein states would not be able to restrict the use of a chemical if the EPA has added it to its “to-do” assessment list but has not yet begun a risk analysis.

Under the bill, seven years could pass between the EPA listing a chemical and restricting its use. Normally, pre-emption of state law does not come into play until the EPA has instituted specific restrictions on a chemical. Additionally, the Udall-Vitter bill forbids states from “co-enforcing” state regulations that mirror federal chemical restrictions – an important backstop to federal enforcement.

Keeping harmful chemicals out of the products that we all use on a daily basis, including those used by the vulnerable in our society, means we should be giving both the EPA and the states all available tools to restrict chemicals that pose a safety hazard. Instead, this legislation takes some valuable tools out of the toolbox while opening the door for the chemical industry to further hamstring the regulatory process both federally and in the states.