Udall, Whitehouse, Merkley, Booker Announce Breakthrough Improvements to Landmark Chemical Safety Bill

WASHINGTON — Today, Democratic U.S. Sens. Tom Udall (N.M.), Sheldon Whitehouse (R.I.), Jeff Merkley (Ore.) and Cory Booker (N.J.) announced a major breakthrough agreement in historic legislation to reform the nation’s broken chemical safety law, a day before a “markup” hearing to finalize the legislation in the Senate Environment and Public Works Committee. Following intense weekend negotiations, the bipartisan compromise agreement strengthens protections under the proposed law and expands states’ authority. It is the latest sign that support is continuing to grow for the Frank R. Lautenberg Chemical Safety for the 21st Century Act, authored by Udall and Sen. David Vitter (R-La.), which would finally ensure the American people are protected from chemicals sold in everyday products and used in manufacturing.

“I am extremely pleased to join Senators Whitehouse, Merkley and Booker to announce this agreement. I thank them — as well as Senator Vitter — for their dogged commitment to working with us and continuing to strengthen this bipartisan bill,” Udall said. “Thirty-nine years is too long to wait for a working chemical safety law that protects our families and communities in New Mexico and across the country. But finally, momentum is building for common-sense legislation to finally ensure our kids are safe from dangerous chemicals. I am very optimistic that we can pass this bill out of committee and bring it to the Senate floor and that support will keep growing in the coming days and weeks.”

“The Toxic Substances Control Act is badly outdated and has failed to protect public health and the environment from toxic chemicals for decades,” said Whitehouse. “We now have an historic opportunity to update and improve the law, and I believe the agreement announced today will help give American families peace of mind that everyday products we rely on are safe. I thank Senators Udall, Vitter, and Inhofe for their leadership on this issue and for working with me and other Senators to address our concerns.”

“This bipartisan agreement greatly strengthens the ability of states to protect citizens from toxic chemicals when the federal government has failed to do so,” Merkley said. “It’s a vast improvement over the broken law currently in force and an important step in protecting families across America.”

“I am proud that we have secured important changes to the Frank Lautenberg Chemical Safety Act that will strengthen and streamline EPA’s ability to regulate toxic chemicals while still allowing states to have significant authority to regulate potentially harmful substances,” Booker said. “While this bill represents a compromise and is not perfect, the bipartisan consensus we have attained is a significant step forward in long-stalled efforts to improve federal chemical safety protections. Senator Frank Lautenberg made strengthening federal laws to better protect Americans from toxic substances and pollutants one of his top priorities, working tirelessly to find common ground across party lines to advance important reforms of the Toxic Substances Control Act. Reaching a bipartisan agreement to improve the legislation bearing his name is a fitting way to honor this great New Jerseyan’s legacy.”

The Udall-Vitter bill would overhaul the 1976 Toxic Substances Control Act, which was gutted by a 1991 court decision that found the Environmental Protection Agency (EPA) lacked the ability to ban even asbestos. The Lautenberg Chemical Safety for the 21st Century bill would require EPA to consider only the health and safety impacts of a chemical — never the cost or burden to manufacturers — when assessing chemicals for safety. It ensures special protections for those most vulnerable from chemicals — defined in the bill as pregnant women, infants, the elderly and chemical workers. It sets a new fee so chemical companies will bear a larger share of the cost of evaluating and regulating chemicals. And it provides certainty in the law about when states may step in if EPA does not act to regulate or ban dangerous chemicals.

The compromise agreement was incorporated into the underlying bill and senators will vote on it at tomorrow’s markup. The agreement addresses some of the concerns that have been raised about the legislation, including when state actions would be preempted by the EPA and how states would be allowed to enforce the law. The changes strengthen protections for American consumers by making it clear that states may act to regulate a chemical if EPA misses required deadlines. It also ensures that states will get waivers to act on chemicals while EPA is evaluating them for safety. And it makes clear that states may co-enforce the law, with the condition that penalties may not be collected from both the state and the federal government for the same violation.

Further details of the agreement include:

The amendment clarifies when states may act after EPA begins evaluating a chemical:

Limitations on new state regulatory actions start when the scope of uses of a chemical is defined and end when the safety determination is made.

  • If the deadline for the safety determination is missed, states are automatically granted a waiver from the “pause.”
  • EPA “shall” approve a state request for a waiver during the safety assessment if the states meet the following criteria:
    • The state requirement doesn’t violate federal law,
    • The state requirement doesn’t unduly burden interstate commerce, and
    • The state’s concern about the chemical substance or the use of the chemical substance is based in peer-reviewed science.
  • If EPA fails to make a decision on a state waiver within 90 days, the waiver is approved.
  • The “automatic” approval of the waiver can be challenged, in which case the approval is suspended until a decision is reached, but if there is still no decision after a further 90 days, the waiver is again approved.

The date for state laws that are grandfathered under the law is moved back:

  • Any state chemical regulation is permanently protected from preemption that is in effect before August 1, 2015. Previously, the grandfather date was January 1, 2015.

The amendment further clarifies pre-emption to state that:

  • All state chemical disclosure laws are permanently protected from pre-emption.

State clean air and clean water laws are not pre-empted.

  • State co-enforcement
  • States will be allowed to co-enforce the law with condition that penalties can be collected from either the federal government or a state, but not both.

Regarding the designation of a chemical as “low priority” (not a significant health or safety threat), the amendment would allow:

  • 90 days of public comment for all listing decisions.
  • Any member of the public to challenge a low priority decision within 60 days of listing.

The amendment lowers the bar for when a chemical can be designated as “high priority” (a significant health and safety threat). It states that:

  • EPA shall designate a chemical as high priority based on “significant” [rather than “high”] hazard rather and “significant” [rather than “widespread”] exposure, and may designate a chemical as high priority if it has either characteristic.

For chemicals that are “persistent, bioaccumulative and toxic” (PBT):

  • EPA must give preference to PBTs on the TSCA Work Plan for selecting chemicals on the initial high-priority list.
  • Whether a chemical is a PBT is a required consideration for all high priority designations.
  • EPA is required to select restrictions in risk management for PBTs that reduce exposure “to the maximum extent practicable” 

The amendment requires expedited action on certain well-known chemicals. It states that:

  • EPA will incorporate into safety assessments and determinations existing information regarding hazard and exposure published by other federal agencies or the National Academies, with the objective of increasing the efficiency of the safety assessments and determinations.

“Unreasonable risk” in the law

  • In relevant places in TSCA, as amended by the bill, the term “unreasonable risk” is either clarified to exclude consideration of costs or other non-risk factors, or the word “unreasonable” is dropped.

The amendment clarifies the deadline for implementing restrictions and prohibitions by stating that:

  • Compliance deadlines for risk management rules are to be “as soon as practicable.” Bans and phase-outs are to be implemented “in as short a period as is practicable.”

Imports section deleted

  • The amendment deletes the imports section in order to maintain strict liability on importers that violate TSCA.

Industry petitioned chemicals — In addition to high-priority chemicals designated by EPA, manufacturers can petition EPA to designate additional chemicals for safety assessments and determinations.

  • The industry would pay 100% of the cost of the assessment. 
  • There is no high priority pause whatsoever for Industry Petitioned Chemicals.
  • These chemicals are in addition to the high priority list and do not limit the number EPA otherwise designates.
  • These chemicals can amount to a minimum of 25% and a maximum of 30% of the cumulative total number of high priority chemicals. (So if EPA is evaluating 25 High Priority Chemicals, there could be an additional 6 to 8 industry-petitioned chemicals, which would allow EPA to review more chemicals than their resources would otherwise allow.) 

Throughput of EPA work plan chemicals

  • For chemicals that EPA has already identified as high-risk, manufacturers can petition for those chemicals to move to a safety assessment and determination, and pay 50% of the cost. EPA has full discretion to approve or deny these industry petitions.

Animal testing

  • For the purposes of TSCA submissions to EPA, industry must look to scientifically reliable alternatives first before conducting new animal testing.