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Close only counts in horseshoes…

Posted by Kathy Attar, MPH on April 30, 2015

My family enjoys all games and a favorite saying my dad would tell us when we were small was that close only counts in horseshoes and with cigars- of course he edited the famous idiom with its reference to hand grenades. The current debate over the Vitter-Udall chemical bill brings my dad’s words to mind.

This past week the Senate Environment and Public Works Committee passed a revised version of S. 697 or the Vitter-Udall bill that would update how the federal government regulates harmful chemicals in the U.S. The new version of S. 697 addresses some of the issues raised by environment, public health and community organizations that overwhelmingly opposed the legislation. But it still would not provide a workable regulatory program that will prevent disease and protect all communities’ health.

States’ rights to pass more protective legislation are still restricted. The new bill prohibits states from adopting or enforcing any new chemical restriction once EPA publishes a “scoping document” (examining what uses of the chemical it will examine). States cannot take any action on the uses under review during this multi-year (up to 4.5 years) process. If EPA says the chemical is safe for all the uses it reviewed, the preemption of state law-making remains. If EPA finds the chemical unsafe, the preemption ends while EPA decides if the chemical requires any regulation.

While states can request a waiver from EPA to take action during this regulatory void, the revised bill retains extremely stringent waiver requirements, making it nearly impossible for a waiver to be granted.

Other critical issues remain in the revised Vitter-Udall bill including:

  • Safety reviews do not have to take into account aggregate exposure to all sources of a chemical when assessing safety or consider the impacts of exposure to other chemicals. Further there is no requirement for assessments of the exposures and risks that could result from spills;
  • Prohibiting the EPA from requesting minimum data sets from chemical companies- data on hazard, exposure and use is key to regulations and protecting the health of workers and the public;
  • New rollback to EPA’s authority to implement Significant New Use Rules for chemicals in products; (These rules provide EPA with an opportunity to review and evaluate the data on a chemical before a company begins manufacturing, or processing for the significant new use. EPA may then regulate the manufacture, or processing of that chemical substance before the initiation of the significant new use, if regulation is warranted.)
  • Confidential business information claims would be grandfathered in; (companies often designate basic information about the chemicals they use as confidential business information. Safety data and identity and function of a chemical cannot be released to the public as a result of these claims); and
  • The “substantial evidence” for judicial review remains- this standard played a role in EPA being unable to regulate asbestos under the Toxic Substances Control Act.

During the EPW committee review, Sens. Kirsten Gillibrand (D-NY), Barbara Boxer (D-CA), and Edward Markey (D-MA) offered several amendments that would have allowed expedited action on asbestos, closed the regulatory void preventing state action before EPA has reached a final regulatory decision and tightened deadlines for the agency to take action on toxic chemicals. All of the amendments failed.

EPW ranking member Barbara Boxer (D-Calif.), credited public health, environmental and community groups who have pushed hard for improvements to the bill with the bill’s current strengthened provisions- the rollbacks to products and imports are gone; citizens are now allowed to sue over a chemical’s low priority listing; and co-enforcement at the state level is restored.

If the Senate passes the bill, it will move to the House. Rep. John Shimkus (R-IL) is scheduled to introduce his own version of TSCA legislation. PSR has voiced its concerns with Shimkus’ legislation. The House could act on the Shimkus bill, take up the Senate bill instead, or work to combine the two. 

What we do know is that Congress must continue to hear our concerns with the Udall-Vitter bill- because the bill we have in front of us is not real, health-protective reform.

Take action today and contact your Senator.

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