The American public lost a strong champion for chemical disclosure and health and safety oversight when Sen. Frank Lautenberg (D-N.J.) died on June 3. The nation mourns his passing.
Elected to the Senate in 1982, Sen. Lautenberg introduced the Emergency Planning and Community Right-to-Know Act, which established the Toxics Release Inventory. This law requires a number of industries to publicly report the toxic emissions their facilities produce; this exposure has significantly reduced pollution. Taking the lead on this legislation was a gutsy move for an elected representative from New Jersey, which has among the highest number of chemical facilities of any state. But Sen. Lautenberg believed people have a right to know the health risks in their communities and that government has a responsibility to protect people from harmful environmental pollutants.
For years, he advocated for improvements to the Toxic Substances Control Act (TSCA), the nation’s primary chemical safety legislation. That law promised to ensure that the 80,000-plus chemicals in use in commercial processes across the United States were safe. But it was flawed from the start. Under TSCA, a chemical company does not have to research the potential health risks of its products before selling them to the public. Instead, the EPA has to prove a chemical is unsafe. This is a very different standard than that used by the Food and Drug Administration, for example.
In the 37 years since TSCA passed, only five of the 200 chemicals targeted for health and safety testing have made it through the convoluted process required before the government can declare a chemical “unsafe” and curtail its use. Moreover, 62,000 chemicals were “grandfathered” out of testing when the law was passed in 1976, and the number of chemicals in use continues to grow.
With the failure of effective federal oversight and control of toxic chemicals, states have stepped in. California, in particular, has played a critical role in protecting the public’s right to know about harmful chemicals and ensuring that government owns its responsibility to protect its residents from harm. Since all manufacturers want to sell to California consumers, as with auto emissions, California’s standards become the nation’s standards.
In 1986, California voters approved the Safe Drinking Water and Toxic Enforcement Act, better known as Proposition 65. The law directs chemical producers to warn the public when significant quantities of risky chemicals are found in their products or at their location. Companies are also banned from knowingly discharging chemicals on the Proposition 65 list into drinking water sources. To ensure it is covering all hazardous chemicals, California often requests test data from industry.
Early this year, Sen. Lautenberg reintroduced the Safe Chemicals Act of 2013, which would have made elements of California’s law part of federal law. This legislation would have shifted the burden of proof and required chemical companies to show that their products are safe before being put on the market. It would have improved consumer access to information on chemical hazards and targeted research on chemical effects on vulnerable populations.
Unfortunately, the Safe Chemicals Act of 2013 was opposed by the American Chemistry Council, and shortly before his death, the senator signed on to a much-weakened, more industry-friendly bill. The compromise bill fails to demand that companies demonstrate the safety of new chemicals, and it allows 17,000 chemicals in commercial use labeled as “trade secrets” to remain hidden from the public.
More disturbing and dangerous, the compromise bill would preempt state efforts to regulate chemical risks. The compromise bill would bar any state from requesting research data on safety from companies or from restricting the use of risky chemicals. Only the federal government would be able to restrict, phase out, or ban a dangerous chemical. Lautenberg’s original bill would fix our broken chemical safety system; the compromise bill — the Chemical Safety Improvement Act — would not.
Sen. Barbara Boxer of California, chair of the Senate’s Environment and Public Works Committee, has said she will work to reinsert the stronger language of Lautenberg’s original legislation. Her colleague, Sen. Dianne Feinstein, has also taken a strong stance, saying she would not permit any law that weakens California’s protections. This would be a fitting way for the Senate to honor an outstanding public servant and to provide a lasting legacy to Sen. Lautenberg’s commitment to protecting the health and safety of the American people.
McFate is president and CEO of the Center for Effective Government, which is a member of the OpenTheGovernment.org coalition, and co-chair of the Coalition for Sensible Safeguards.