June 27, 2017

Udall Raises Concerns about EPA Implementation of TSCA Reform in Keynote Address at ELI/GWU Conference

New rules for reviewing existing chemicals ‘make me concerned that this EPA will try to use the program to prioritize safeguarding industry, rather than the public'

WASHINGTON — Today, U.S. Senator Tom Udall used his keynote address at a conference on “TSCA Reform: One Year Later,” hosted by the Environmental Law Institute and George Washington University’s Milken Institute School of Public Health, to raise concerns about the Environmental Protection Agency (EPA)'s implementation of the new reform law. A year ago, Udall led passage of the landmark, bipartisan chemical safety legislation, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, to reform the badly broken Toxic Substances Control Act (TSCA) of 1976. Among the reforms to the law were a requirement to protect vulnerable populations — infants, pregnant women, the elderly and chemical industry workers — and to evaluate and review the safety of all new and existing chemicals on the market.

One year after the Lautenberg Act was signed into law, the EPA is at a critical stage for implementation of the landmark legislation. In his remarks, Udall said he will fight to make sure the agency follows Congress' intent to prioritize public health and safety and that he is concerned that the EPA won't be able to resist pressure from industry.

"I will fight tooth and nail to prevent the Lautenberg Act from going the way of the original TSCA. We do not want to go back to a lack of confidence in our federal program, with the burden falling on states to regulate chemicals of concern, and with consumers unsure whether the products they purchase are safe. But that is a real risk. Industry, in particular, must avoid the temptation to overstep just because of a new favorable political climate," Udall warned. "I have already seen some in industry arguing that reforms to the new chemicals program were being misinterpreted by the EPA. Any claims that the provision was merely intended to enhance efficiency and promote the speed by which a new chemical is approved are false. Congress’ intent was to prioritize health and safety, and to ensure that the EPA reviews the relevant information about intended and reasonably foreseen uses of a chemical before it is allowed onto the market."

Udall also raised concern about how the EPA will handle its review of existing chemicals. "My initial review of the final rules makes me concerned that this EPA will try to use the program to prioritize safeguarding industry, rather than the public. For example, the EPA should not open the door to conducting very narrow assessments of chemicals -- some at industry’s behest -- when Congress intended that EPA do broad assessments. But it appears that may be the direction. And the EPA and industry must not wield the Lautenberg Act solely to protect chemical manufacturers from federal or state regulations on certain uses of their chemicals. It must broadly evaluate chemicals to determine which uses are safe and which are not. And it must regulate uses that are unsafe."

"We must be vigilant so we can ensure a credible chemical safety system,” Udall concluded. "My colleagues and I will be watching in Congress, and we will cry foul whenever there is reason for concern. We must ensure this law protects the public’s health and safety – especially that of our most vulnerable populations.”

Below are Udall’s full remarks as delivered:

Thank you for inviting me to speak today.

Thanks to the Environmental Law Institute and other sponsors – the GW Milken School of Public Health, the Environmental Defense Fund, and Bergeson & Campbell – for putting on today’s conference.

The Lautenberg chemical safety law is still in its infancy. This is the most important time to keep a close eye on its implementation. We must ensure it becomes the strong tool for public health and safety that Congress intended.
This forum is a great opportunity for everyone to come together - to analyze and discuss the progress that has been made in the first year - and to talk about future efforts.

I’m happy to hear that Bonnie Lautenberg spoke to you about her very key role. She had more drive and determination to make TSCA reform a reality -- and to protect public health and the environment – than all of us put together. We will always be grateful for her – and Frank’s – leadership.

TSCA reform was decades overdue.

Rachel Carson laid groundwork when she published Silent Spring in 1962. Then TSCA was passed in 1976.

We knew many chemicals hurt human health and the environment. But the federal government was essentially powerless to protect the public – because the courts had eviscerated the federal act.

So you had the law passed, they did the banning of chemicals - it came at five chemicals. Then it came to a halt with asbestos.

It took a lot of hard work and negotiating to convince all stakeholders to strengthen a major environmental law.

What we really did was stand up a new environmental law, I believe.

We succeeded because industry saw that reform was in its best interest.

Environmental and public health advocates rolled up their sleeves. And both sides of the aisle in Congress wanted it done. Everyone had to compromise. But we got it done.

We all came together. You know, compromise is not a dirty word. If you get serious people with serious interests at the table, you can get things done.

Congress gave the administration clear direction in the Lautenberg Act: to make sure chemicals in commerce are safe - and I underline safe.

The law requires – for the first time – that EPA assess the safety of all new chemicals before they go on the market, and to review all chemicals currently on the market. We directed the EPA to start with high-risk chemicals.

And the EPA is specifically directed to determine the impact on vulnerable populations: pregnant women, infants, the elderly, and chemical workers. These are the folks who are most vulnerable.

As it performs risk assessments, the EPA is also directed to consider only the impact of the chemical on human health and the environmental – not costs to industry

This provision purposefully overturned the 1991 Fifth Circuit Court of Appeals case that blocked the EPA from regulating asbestos -- a known carcinogen.

This is a signature provision of the act. And I want to repeat that and emphasize that. It was really the heart of a lot of what we did. It was non-negotiable during the legislative negotiations.

The act also set aggressive deadlines for EPA implementation.

The question we’re here to consider is – how is the implementation going?

The EPA met all its first-year deadlines, including identifying the first 10 high priority chemicals.

I congratulate the EPA and career staff for meeting all its deadlines so far. It’s an enormous feat.

When I talk about career staff, all these federal agencies with these scientists and others in there, they are really, really serving the public. They spend their lifetime doing that. It’s important to tell them thank you and to tell them to stay in there—no matter what they see on the ground—and keep doing the job.

Of course, that is not to say the rules are perfect, or that I support all of them.

My staff and I are still reviewing them with an eagle eye to ensure the EPA is complying with Congress’ emphasis on health and safety.

This is a critical moment for the EPA and the country.

Proposals to slash the EPA’s budget, deny basic science, politicize the EPA’s scientific advisory process, and prioritize business interests over health are insidious steps that not only cut the legs out from under the agency now – they threaten to weaken the agency for years to come.

These actions fuel distrust between environmental and health advocates and industry groups. They also are devastating for morale – and a huge barrier to recruiting new talent at a time when the EPA needs to hire scientists and others to ramp up testing and implement other sections of the law.

We must not erode any provisions guaranteeing Americans' protection from dangerous chemicals. I will be fighting hard - as ranking member of the Senate Appropriations Subcommittee overseeing the EPA's budget - to ensure we preserve the EPA’s budget, protect it from staff cuts, and ensure this and other essential environmental safety programs are not harmed.

Congress worked hard to get this bill passed. And I want to see congressional direction followed.

I will fight tooth and nail to prevent the Lautenberg Act from going the way of the original TSCA. We do not want to go back to a lack of confidence in our federal program, with the burden falling on states to regulate chemicals of concern, and with consumers unsure whether the products they purchase are safe.

But that is a real risk. Industry, in particular, must avoid the temptation to overstep just because of a new favorable political climate.

I have already seen some in industry arguing that reforms to the new chemicals program were being misinterpreted by the EPA.

Any claims that the provision was merely intended to enhance efficiency and promote the speed by which a new chemical is approved are false.

Congress’ intent was to prioritize health and safety, and to ensure that the EPA reviews the relevant information about intended and reasonably foreseen uses of a chemical before it is allowed onto the market. I know that the EPA struggled with this change and industry grew impatient with the pace. But the EPA has added extra staff and engaged stakeholders to help them through this new process.

I also am concerned about how the EPA will handle its review of existing chemicals. My initial review of the final rules makes me concerned that this EPA will try to use the program to prioritize safeguarding industry, rather than the public.

For example, the EPA should not open the door to conducting very narrow assessments of chemicals - some at industry’s behest - when Congress intended that EPA do broad assessments. But it appears that may be the direction.

And the EPA and industry must not wield the Lautenberg Act solely to protect chemical manufacturers from federal or state regulations on certain uses of their chemicals. It must broadly evaluate chemicals to determine which uses are safe and which are not. And it must regulate uses that are unsafe.

We have been operating for too long as if people are exposed only to one chemical at a time and that they use that chemical for only one reason at a time.

The best available science tells us the opposite is true: We are exposed to many chemicals. And a given chemical may be released from many sources into the environment; used in many different products; lead to exposures in our homes, workplaces, and schools; come to us through various sources -- air, water, food -- and enter our bodies through inhalation, ingestion or even our skin.

Congress envisioned that TSCA would take into account and control chemical exposures across the full lifecycle of chemicals, and across different sources and different uses. That promise was never realized. And that is one of the reasons I worked so hard to reform the law.

After the Lautenberg Act was enacted a year ago, I had high hopes that we could once again realize that vision. The framework rules proposed in January set us on that course. So I am disappointed to see that the final rules not only significantly weaken those proposals, but seek to return us to the old days and old ways of piecemeal chemical evaluations – that don’t reflect anything we know about the real world.

Contrary to the clear intent of the law, these final rules allow the EPA to focus only on a subset of uses, rather than conducting comprehensive reviews.

Broad use exclusions can be set up front. And the EPA is given authority to exclude yet more uses of a chemical on a case-by-case basis.

This will allow companies to ask the EPA to review whatever uses of a chemical they want - in order to get a stamp of approval or a leg up on their competition. And if the EPA believes a broader review is needed, the EPA bears the burden to show why. Private interests will be allowed to trump public ones - a theme of this administration. No pun intended!

We only have to look at how the EPA has handled its decision on a related matter – whether to reverse a proposed ban of the pesticide chlorpyrifos.

Years of data and science show clearly that this pesticide should be banned. It has already been removed from household use because of safety concerns. But the EPA is bucking its decision until 2022 – to allow for more study.

I don’t know what more studies need to be done. The only remaining studies are to watch the harm it’s doing to our growing children. That is unacceptable.

I recently underwent some personal studies to look at my own chemical exposures. For one, I used a new monitoring device - a simple silicon wristband that I wore over the course of several weeks. I’ll be sharing my results in more detail soon. But here’s a preview of some of the results. They are directly relevant to the topics being discussed today.

It detected:

-Five of the chemicals listed as being on the “TSCA Workplan” in 2014;
-Several so-called “legacy chemicals” no longer made in the U.S., including several flame retardants and PCBs; and
-Several chemicals that are supposedly used only as chemical intermediates at industrial facilities.

If I’m exposed to such chemicals, I have no doubt many millions of Americans are too.

We must be vigilant so we can ensure a credible chemical safety system. My colleagues and I will be watching in Congress - and we will cry foul whenever there is reason for concern.

We must ensure this law protects the public’s health and safety – especially that of our most vulnerable populations.

Thank you for your time. I can take questions.