EPA Wins Clout to Fight Toxic Chemicals, But It May Take a While

  • Proposal would give agency more power to regulate chemicals
  • Critics say EPA lacks resources, expertise to run program

Hormone-disrupting chemicals used in your shower curtain or water bottle could face stiffer rules under a measure passed by Congress this week. But it will be years before regulators determine if phthalates and thousands of other chemicals are risky and should face restrictions or bans.

The biggest overhaul of chemical safety laws in four decades should make it easier for the Environmental Protection Agency to regulate toxic substances; however, implementing the proposed law will be a herculean task for an agency with scarce resources, former officials and lawyers say. By the time EPA finishes work on the chemicals it has prioritized, the children of today’s children will have been exposed to them -- probably for years.

"It’s a very ambitious undertaking -- it’s going to be hard," said James Aidala, the former head of EPA’s chemical safety office and a consultant at Bergeson & Campbell. "It is going to take a long time, even if the administration gives the program a slug of money on day one."

The EPA has succeeded in regulating only five chemicals since 1976, when Congress passed the Toxic Substances Control Act. Part of the problem is that the current law granted EPA only 90 days to decide whether a new chemical poses an "unreasonable risk" before it can enter the market. Agency officials say they rarely get the toxicity data they need to make that call in time.

The new congressional re-write of the law, which is supported by both President Barack Obama and companies such as DuPont Co. and Dow Chemical Co., would remove those procedural hurdles, require EPA to focus on high-priority chemicals and give the agency new tools to collect data from companies. It also eliminates a requirement to weigh safety rules against the cost of compliance, something that has stymied regulation since 1991 when a federal court overturned EPA’s ban on asbestos.

Public Confidence

In a rare moment of bipartisan comity, the measure sailed through the Senate by voice vote last night, after earlier passing the House, 403-12. It now heads to Obama for his signature.

"This law has been in need of updating for decades," said Senator David Vitter, a Republican co-sponsor of the legislation. "I’m very excited we’ve finally done that, after five years of work."

Still, it will be decades before EPA can finish evaluations on the first 90 chemicals it has already identified as high priority. The slow pace may continue to undermine the public’s confidence in chemical safety, something the industry was hoping the law would reverse after enduring years of retailer bans, consumer boycotts and state regulations.

"There is a relatively small number of chemicals that actually should be prioritized," said Cal Dooley, president of the American Chemistry Council. "But will it take a fairly significant period of time? Yeah, it is going to take some time."

An analysis by the Environmental Working Group, which has criticized the TSCA re-write as too weak, estimates that EPA needs 28 years to complete risk evaluations on the 90 chemicals in its work plan, 30 years to finalize related regulations on those chemicals, and 35 years to implement the resulting rules.

"The question will be whether the resources are available," said Scott Faber, vice president of government affairs at Environmental Working Group. "A lot of this is dependent on the agency getting appropriations, and history shows that funding for EPA will be contested."

An EPA spokeswoman, Cathy Milbourn, declined to comment about implementation of the measure before it became law.

Funding Concern

EPA funding under the current Republican Congress has flat-lined, and last year’s budget deal kept the agency’s staffing at the lowest level since 1989. Under the proposed law, EPA would be able to raise funds for chemical testing by levying fees on chemical manufacturers, but would still rely largely on federal money to run the program.

Congress will appropriate $56 million for the program in its first year, which should be enough for the EPA to begin work on 10 chemicals, according to Senator Tom Udall, co-sponsor of the bill and the top Democrat on the Senate panel responsible for setting EPA’s budget. "I’m going to fight to make sure EPA has the funds to do its job," Udall told reporters. "We need to manage expectations and ensure that we get off on the right foot, not the fastest foot."

According to Celanese Corp. CEO Mark Rohr, who is chairman of the American Chemistry Council, the industry is already lobbying Congress to make sure the EPA gets the federal funding it needs to carry out its new mandates.

The 90 chemicals EPA is considering for initial review include common substances such bisphenol-A, used in plastic can linings, certain flame retardants, and styrene, used to make foam cups and insulation. Also on the list are arsenic and asbestos. Safety evaluations of the first 10 must begin within six months of the law’s passage, and at least 20 must be underway within three-and-a-half years. Regulation of the chemicals would only follow those reviews.

The first rules restricting compounds the EPA determines are a public hazard should begin to kick by 2022, said Judah Prero, a lawyer at Sidley Austin LLP. “Yes, it is going to be a little while,” he said. “But the likelihood is that the more EPA does, the better they will get at it.”

Initial evaluations are likely to focus on substances on which EPA has already started work, such as asbestos and the plasticizers known as phthalates, he said. Companies can accelerate the pace of reviews under a provision that allows them to pay for expedited reviews of new chemicals they want to produce and sell.

The initial reviews are just the beginning of EPA’s task. The agency lists about 85,000 chemicals that have been in commerce, and the list could grow under a provision in the new law that requires companies to notify EPA about what chemicals they are producing and using. Some could fall under the EPA’s microscope as reporting requirements reveal previously unknown hazards.

The outcome of the this year’s election may also play a pivotal rule in how the next chemical safety law is implemented -- and how broadly or narrowly it’s applied.

"It’s the next administration that will have the greatest role in what TSCA will be," said Daniel Rosenberg, a senior attorney at the Natural Resources Defense Council. Depending on who is in the White House, "you could see EPA either exonerating chemicals by designating them ‘low priority’ or adopting mild restrictions that aren’t sufficient to protect public health."

"What EPA chooses to do with this authority is an open question," he said.

The bill is H.R. 2576.

(Updates with comment from Vitter in seventh paragraph, Udall in 14th paragraph.)

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