Policy Points: Is Chemical Reform Coming In the 2016 Congress?

By Zach Bernstein

As we move into the new year, one major question continues to emerge: In an election year, will Congress be able to pass anything?

It’s accepted wisdom in Washington that, particularly with presidential elections, the odds of any major legislative victories becomes slim, even in the best of times (which this isn’t, at least as far as passing legislation goes).

Members are out campaigning and often are reluctant to take tough votes that could be used in campaign ads – or perhaps worried about letting members of the opposing party trumpet legislation they got passed.

Somewhat surprisingly, though, there is one issue that Congress continues to move on, and which could yield modest gains for consumers and businesses alike.

The road to reform

The issue is chemical regulation reform, an area that’s in desperate need of an update. Existing federal law, the Toxic Substances Control Act (TSCA), hasn’t been updated since it passed in 1976. And there’s a lot that’s wrong with it.

While the law was designed to allow the EPA to test chemicals for safety, tens of thousands of chemicals have never been tested because they were on the market before TSCA was passed and got grandfathered in. The EPA has only managed to restrict five chemicals, and it lacks the power to do more due to a court decision that tied the agency’s hands – a problem only Congress can fix.

This is why the past several Congresses have pushed for TSCA reform, culminating with the introduction of two pieces of legislation in the House and Senate last year.

The next step is for negotiators from the House and Senate to hammer out a compromise bill that both houses will approve. The good news is, there’s actually potential incremental progress in these bills at the outset of negotiations.

The bad news is, there’s also a lot not to like that could make the final bill worse than existing law.

Strange brew

That’s particularly true with the Senate bill (S.697), known as Udall-Vitter for its bipartisan co-sponsors, who introduced different versions of the bill in previous Congresses. Much of the bill has been improved from its initial incarnation as a chemical industry wishlist. Specifically, it now includes provisions that improve transparency and create a funding mechanism for EPA to actually get chemical review work done.

But many issues remain in the current bill, including some that make it fall far short of meaningful reform. For one, it would require that a number of chemicals be set aside as “low priority,” which would let potentially harmful chemicals off the hook with relatively little scrutiny from EPA. The EPA would also have more hurdles to intercept imported products that include potentially hazardous chemicals, and expend time and resources on tasks that distract from reviewing chemicals.

Worst of all however, the bill would pre-empt states from taking action on so-called “chemicals of concern” while the EPA is studying them.

The danger goes beyond risks to consumers. Companies that produce chemicals, or use them to make their products, can be put at risk from potential health hazards that can surface years later (think fiberglass and asbestos). These can bankrupt companies and destroy entire industries. If they can’t learn which chemicals are dangerous and which aren’t, businesses nationwide could be put at risk. That’s especially unfortunate for those trying to do the right thing.

Let’s get together

Fortunately, the House legislation improves on much of this. It would not pre-empt state action before the EPA makes a decision, and removes the legal barriers that were hampering EPA. While the House bill has its own issues, like inadequate resources for EPA, it does have a lot of positive language, like a faster schedule to review chemicals and allowing EPA to get to its critical work right away.

Which brings us back to the next step for chemical reform: reconciling the two bills. Negotiators will be meeting to hammer out differences between their bills, both of which are decidedly mixed bags.

Congress has a chance to do this right, but any final legislation needs to meet key principles in order to represent truly meaningful reform: Transparency for existing chemicals, a minimum safety level (with room for states to surpass it), and innovation to support the development of safer alternatives, not codify the status quo.

Both the House and Senate bills have elements that would help achieve these goals, but also much that wouldn’t. And while many businesses expressed some worry following the Senate vote, there was clear agreement on one thing: The negotiation process offers a golden opportunity to combine the best parts of both bills into a final version.

There may be few opportunities for major policy victories in the rest of the year, which is why it’s crucial for businesses to stay involved in pushing for meaningful chemical reform when the negotiators meet. This is a policy area in desperate need of an overhaul. Done wrong, however, it could end up having disastrous consequences.

Image credit: Pixabay

Zach Bernstein is Manager of Research and Social Media for the American Sustainable Business Council.