Congress is about to do something that will regulate products you use every day
The Environmental Protection Agency will have to review the safety of thousands of chemicals — many commonly found in items Americans interact with every day — under legislation Congress is expected to pass this week.
The bill, an update of the 40-year-old Toxic Substances Control Act, allows the EPA to gather more information about a chemical before it can be used in the United States, while limiting how and when states can act to regulate a chemical themselves.
The current Toxic Substances Control Act, signed by President Ford in 1976, gave the EPA authority to review the potential human and environmental risks of chemicals, but the agency restricts only a small fraction of the tens of thousands of chemicals used in products in the United States including detergents and pesticides.
Some states, like California, have filled the void and set stringent requirements. Other states have not, leaving a patchwork of chemical regulations that almost derailed the current effort, which preempts states from setting new rules if the EPA is reviewing a chemical.
California Secretary for Environmental Protection Matthew Rodriquez said by phone Tuesday that he is reassured changes to the bill that Sen. Barbara Boxer (D-Calif.) pushed will allow the state to continue regulating potentially toxic chemicals.
The new bill requires the EPA to review the safety of all chemicals currently used in items on the market, and make the results of the safety review available to Congress and to the general public.
The agency will also be required to consider the effect of chemicals on infants, pregnant women and the elderly as part of its review, but will not have to consider cost.
The EPA will no longer have to show a chemical is potentially a risk before testing it. Currently, a chemical can enter the market within 90 days unless the agency can prove it might be dangerous.
Streamlining state efforts
With federal power to regulate chemicals limited under existing law, California and a handful of other states have set their own standards over the last few decades.
In return for broad federal authority to regulate what goes into American products in the new bill, the chemical industry has insisted on limits to the power of states to add additional regulations of their own.
Boxer said in an interview Tuesday that Congress has to think about the broader effect of the new law on all states.
California might have robust regulations, but “it can’t do everything for the whole country,” Boxer said. “They’ve been fabulous, and they’ll do more but now there is a federal program, so assuming there is a good EPA ... Californians will be better protected because they’ll have the federal program and the state program. If the EPA does nothing then it’ll be pretty much [the] status quo.”
The bill still allows states to regulate chemicals above the federal levels in certain situations.
“Would I rather have absolutely no preemption? I would," Boxer said. "But the way we have it now it still allows for a very robust program by our state.”
All state laws, rules and regulations for chemicals that were in place on April 22 will not be preempted by the new federal law. In the future, if a state regulates a new chemical and the EPA regulates it differently, the federal standard would preempt the state's rules.
States are required to pause on regulating a chemical being reviewed by the EPA unless they get a waiver or the federal review takes longer than three and a half years. States can also regulate a chemical if the EPA isn’t reviewing it or for 18 months after the agency says it plans to review it.
Boxer said she hopes the short time frame will spur states to move quickly on the chemicals they have concerns about.
Rodriquez praised the waivers, the fact that existing state regulations are grandfathered in and the 18-month window to regulate. The state will want to keep an eye on what chemicals the EPA might consider reviewing, he said, so California can act quickly if it needs to.
“The preemption provisions have been scaled back in a way that we think provides the state with some flexibility,” he said. “We’ll work with it. Many times these chemicals don’t appear out of nowhere.”
Rodriquez questioned whether Congress will give the EPA the funding it needs to promptly test and regulate thousands of chemicals.
“If they can’t go ahead, we would intend to proceed under California law,” he said. “I think there will still be a robust chemical regulatory program going on.”
Rep. Jared Huffman (D-San Rafael), one of four California House members who opposed the bill, echoed that concern by saying while the bill is better than current law, he’s concerned that “potential future actions by California could be preempted or delayed without adequate assurance that the new federal process would be prompt, effective and appropriately funded.”
In the state Assembly, Huffman cosponsored a bill that required the state Department of Toxic Substances Control to proactively identify and regulate potentially dangerous chemicals.
On Tuesday, Interior and Environment Appropriations Subcommittee Chairman Ken Calvert (R-Corona) released the Interior and Environment Appropriation bill, which cuts EPA funding by $164 million for fiscal year 2017 and holds staff at 15,000 positions. Calvert voted in favor of the Toxic Substances Control Act overhaul.
Congress has tried before to overhaul the Toxic Substance Control Act, with members divided on how it should look and whether states should still be allowed to implement more stringent restrictions on chemicals than those levied by the federal government.
Boxer and other senators blocked the bill for most of last year.
The bill has moved quickly since late last week, when Boxer and other senators announced they had reached a compromise. The House voted 403-12 Tuesday evening to approve the bill, and the Senate could vote on it as early as Thursday.
Voting no with Huffman were Reps. Zoe Lofgren (D-San Jose), Jackie Speier (D-Hillsborough) and Tom McClintock (R-Elk Grove).
McClintock said the bill was supposed to expedite and standardize the EPA's evaluation of toxic chemicals, but it broadens the EPA's powers and no longer allows it to consider cost as part of a chemical's risk evaluation, while still allowing states to adopt more stringent standards and raise fees.
"This is a well-intentioned bill that accomplishes the opposite of what it is designed to do," he said in a statement.
Speier said in a statement that the bill accommodates industry over consumers.
"California is protecting consumers from toxic chemicals, but with this bill California’s law would be defanged," she said.
For her part, Lofgren said she was worried about federal law preempting state law.
"California sets the standard and pushes the whole country forward on safety," she said.
In a statement Monday, the White House indicated that President Obama would sign the bill.
"If the federal government is to restore public confidence in the safety of chemicals, which are used in commerce and are an integral part of the nation's economy, it is essential that the Congress provide EPA with the necessary tools and authorities to effectively assess chemicals and regulate risks," it reads.
In a joint statement Monday, House Minority Leader Nancy Pelosi and other House leaders said though they have some concerns about how the bill limits the state's ability to act on toxic substances, they will support it because it broadens EPA authority.
"It is not the bill Democrats would have written on our own, but it is a long-overdue step forward to protect families and communities from toxic substances,” the statement read.
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Read more about the 55 members of California's delegation at latimes.com/politics
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