Congress poised to pass updates to toxic substance act

WASHINGTON — 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 Gerald 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.

With federal power to regulate chemicals limited under existing law, a handful of 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 pre-emption? I would,” Boxer said. “But the way we have it now it still allows for a very robust program by our state.”