Introduction
One of Sen. Frank Lautenberg’s last bills could represent the best chance to update the nation’s chemical safety regulations by requiring proof that a chemical is safe before it can be used.
But the legislation is drawing deep skepticism from some environmental groups and state officials who fear it could actually weaken safety standards.
Lautenberg, a New Jersey Democrat who died Monday of viral pneumonia at age 89, worked for decades on environmental legislation, including a 1986 law that created the Environmental Protection Agency’s Toxics Release Inventory, a database that allows members of the public to track pollution.
Lautenberg’s newest proposal, the Chemical Safety Improvement Act, was the product of a compromise with Republican Sen. David Vitter of Louisiana. Introduced May 22, it won the endorsement of nine Senate Republicans, along with the influential American Chemistry Council, a trade group.
A council spokesman called it “a balanced, comprehensive approach to updating the law, which will give consumers more confidence in the safety of chemicals, while at the same time encouraging innovation, economic growth and job creation by American manufacturers.”
An earlier, stricter chemical safety bill — essentially unchanged from legislation Lautenberg had put forward in each Congress since 2005 — failed to draw Republican support.
Lautenberg’s latest bill has been referred to the Senate Committee on the Environment and Public Works, which has not yet scheduled it for a hearing.
Meanwhile, prominent environmental groups like the Natural Resources Defense Council have expressed misgivings.
The bill “still leaves too many gaps in protecting the public,” Daniel Rosenberg, a senior attorney with the group, said in a statement May 24. Rosenberg said it lacks statutory deadlines for the EPA to review chemicals and may do little to improve on the Toxic Substances Control Act of 1976, which many dismiss as ineffective because it makes it difficult to require that chemicals be tested.
The existing law “has never accomplished its goal of protecting the public from dangerous chemicals,” Rosenberg said.
Others worry that the legislation could preempt stricter chemical regulations in states like California, known for its environmental laws, many of which were passed by voters in referendums or signed by Republican governors.
A 2003 law, for example, banned lead, cadmium, mercury and hexavalent chromium from product packaging, and was updated three times during Gov. Arnold Schwarzenegger’s administration. State lawmakers have also banned the sale of jewelry containing lead, and enacted a 2011 law to toughen fines against retailers who violate the restrictions.
In a statement Thursday, California’s Department of Toxic Substances Control said it was “reviewing the federal legislation and looking at what effect the preemption could have on our laws and regulations.”
In a May 31 letter to Sen. Dianne Feinstein, D-Calif., an official with the agency warned that the bill could impair the state’s decision-making because its authority relies on obtaining waivers from the EPA.
Under the proposed law, “the criteria to qualify for such a waiver make obtaining one nearly impossible,” wrote Josh Tooker, the department’s deputy director for legislation.
Richard Denison, a senior scientist at the Environmental Defense Fund, said the bill could override the requirements of California’s Proposition 65, which requires the state to maintain a list of chemicals that cause cancer or reproductive harm. Businesses are then required to notify customers when those chemicals are present. The list contains about 800 chemicals, according to the website of the state’s Office of Environmental Health Hazard Assessment.
Some states also ban bisphenol A, a chemical used in food packaging and other products, and certain flame retardants that federal officials have been slower to act on, Denison said.
“That’s why the industry has come to the table,” he said. “There’s got to be some expansion of preemption or there’s no reason for them to even play.”
While the bill would require the EPA to review an initial list of chemicals and test them for safety, if a chemical were found to be safe, states would be bound by that decision with few exceptions. Denison said it might be possible for industry to stall the EPA and put state rules on hold while new research was pending.
Denison wrote in a blog post Wednesday that he thought the legislation’s problems could be resolved in negotiations between Democrats, Republicans and industry groups.
Even in its current form, the bill is “significantly better than the status quo,” Denison wrote.
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