Guest Host: Sabri Ben-Achour

Sen. Edward Markey (D-MA) (R) speaks while flanked by Sen. David Vitter (R-LA) (L) Sen. James Inhoof (R-OK) (2ndL) Bonnie Lautenberg (C), widow of former Senator Frank Lautenberg (D-NJ), and Sen. Tom Udhall (D-NM) (2ndR), during a news conference on dangerous chemicals, on Capitol Hill October 6, 2015 in Washington, DC.

Sen. Edward Markey (D-MA) (R) speaks while flanked by Sen. David Vitter (R-LA) (L) Sen. James Inhoof (R-OK) (2ndL) Bonnie Lautenberg (C), widow of former Senator Frank Lautenberg (D-NJ), and Sen. Tom Udhall (D-NM) (2ndR), during a news conference on dangerous chemicals, on Capitol Hill October 6, 2015 in Washington, DC.

In 1976, the Toxic Substances Control Act, which sought to regulate the safety of many chemicals in use, was signed into law. Now, Congress appears ready to give it a complete overhaul. The reason for the unusual display of bi-partisanship is a growing acknowledgement from a variety of interest groups that the law does not give the federal government enough authority to examine the safety of chemicals in use or to keep unsafe ones from coming on the market. After years of efforts to reform the law, this week the House passed a bill by big margins. The Senate is expected to follow. Guest host Sabri Ben-Achour and a panel of experts discuss overseeing the safety of chemicals.

Guests

  • Scott Faber Senior vice president for government affairs, Environmental Working Group; former vice president, the Grocery Manufacturers Association.
  • Kate Sheppard Enterprise editor and senior reporter, The Huffington Post
  • Tom Udall U.S. Senator (D), New Mexico
  • Dr. Lynn Goldman Dean, the Milken Institute School of Public Health at the George Washington University; former assistant administrator for the Environmental Protection Agency's Office of Prevention, Pesticides and Toxic Substances
  • Aric Newhouse Senior vice president of policy and government relations, NAM

Transcript

  • 10:06:54

    MR. SABRI BEN-ACHOURThanks, everyone, for joining us. I'm Sabri Ben-Achour from "Marketplace" sitting in for Diane Rehm. Here's some information that's probably surprising to many of you. According to one environmental group, only about 2 percent of chemicals in use today have undergone a safety review by government scientists. To discuss what Congress is doing to improve chemical safety oversight, I am joined in the studio by Scott Faber of the Environmental Working Group, Kate Sheppard of the Huffington Post, Dr. Lynn Goldman, dean of the school of public health at the George Washington University and Aric Newhouse of the National Association of Manufacturers.

  • 10:07:30

    MR. SABRI BEN-ACHOURThank you all for being here.

  • 10:07:31

    MR. SCOTT FABERThanks for being here.

  • 10:07:33

    BEN-ACHOURAnd on the phone, we have Senator Tom Udall. He's the Democratic senator from New Mexico. He's co-author of the reform bill, the Frank Lautenberg Chemical Safety for the 21st Century Act. Senator Udall, thanks for calling in.

  • 10:07:49

    SEN. TOM UDALLOh, it's a real pleasure to be with you and thank you to all the other guests that are a part of this. They're very knowledgeable and I think people will learn a lot in terms of what we face today.

  • 10:08:03

    BEN-ACHOURSo Senator, can you give us a sense of the kinds of chemicals this new law would cover? I mean, I'm thinking toothpaste, water bottles. Is it just everything?

  • 10:08:13

    UDALLWell, as you said, just 2 percent have been tested. Some chemicals, like pesticides and insecticides are dealt with other agencies, but the Environmental Protection Agency basically deals with all the other chemicals that are out there. And here's the problem. Americans are exposed to dangerous chemicals on a daily basis and there's no cop on the beat. Most Americans believe that if they buy a product at a grocery store or a hardware store, the government has tested it and determined it to be safe.

  • 10:08:49

    UDALLBut that's just not true. We're exposed to hundreds of chemicals in our daily lives. Some are toxic, even chemicals in common household items. If I could just run by a few of those 'cause people don't realize this. Flame retardants can be in the dust from your sofas. Formaldehyde in pressed wood floors and even in non-ironed shirts. Most water bottles are BPA-free now, but BPA can still be in your credit card receipts and the list goes on and on, so...

  • 10:09:20

    BEN-ACHOURWhat kinds of health risks do you think Americans have arguably been and maybe are exposed to because of these chemicals and because of problems in current law and how does this legislation fix that?

  • 10:09:33

    UDALLWell, some of the chemicals have been linked to cancer, infertility, Parkinson's disease and many other diseases out there. We've had two major films, one by Robert Redford's son, James, and another by Sean Penn, that talk about the risks of chemicals. We carry these chemicals around in our bodies, even before we're born. Infants, pregnant women, the elderly and workers exposed to chemicals on the job are particularly at risk. For example, we've seen an increase in cancer rates among firefighters who are exposed to chemicals from smoldering furniture in house fires.

  • 10:10:15

    UDALLSo you're asking now, what does this bill do? We put a cop on the beat for chemical safety. This law is completely broken now. The EPA lacks the ability to evaluate and the authority to regulate chemicals. Over four decades, the EPA has been able to restrict just five chemicals and it has prevented only four chemicals from going to market. That's out of 85,000 chemicals existing out there.

  • 10:10:43

    BEN-ACHOURWell, as you say, there are tens of thousands of chemicals out there to look out. How's the EPA going to decide which ones to start reviewing first? I mean, how do they prioritize all that?

  • 10:10:53

    UDALLWell, the EPA has been working for a long time, even though they've been very restricted in terms of their ability to act, because of a court ruling. They have been working on work plans, collecting information. They have some great scientists over there and they have listed many of the chemicals that they think need to be worked on. And what we're talking about here in terms of what this bill would do, this piece of legislation would require the EPA to protect the most vulnerable people, the children, the elderly, pregnant women and chemical workers.

  • 10:11:28

    UDALLIt would give the EPA new authority to order testing and insure chemicals are safe. It would insure the EPA reviews new chemicals before they go on the market, that's not done today, and provide the EPA with resources to do its job and requires that industry does its share to support the program, providing $25 million a year. That's a fee on the chemical industry that then that money is put back into the agency. And then, finally, this bill sets mandatory enforceable deadlines for the EPA to act.

  • 10:12:02

    UDALLSo I think we have a good, solid piece of legislation. We have many, many groups that have supported it from public health groups, environmental groups, state attorneys general. We even have the California and New York attorneys general comfortable with this, at this point. The EPA has been a good technical advisor in terms of helping us draft a law that will work on a daily basis for them. And so we're very excited that we've reached this compromise.

  • 10:12:36

    UDALLAs I said, it's not perfect, but it's something that's going to protect the American people.

  • 10:12:43

    BEN-ACHOURWhy is it named after the late Senator Frank Lautenberg?

  • 10:12:47

    UDALLWell, Frank Lautenberg was very frustrated with Congress and with the gridlock and he had a great bill, which I was on, which was much closer to a perfect bill, but we could never get a single Republican vote. And so what Frank did is he went to the ranking member on the committee, David Vitter, and they came up with a bill. And almost immediately, 12 Democrats and 12 Republicans were on the bill. Frank died about six weeks later and I was of the committee of jurisdiction.

  • 10:13:25

    UDALLI picked up the bill. I went and had dinner with David Vitter and I said, we've got to get this through. This is too important for the American people. And we decided in the process of working on this, this would be a fantastic legacy for Frank. And by the way, his widow, Bonnie Lautenberg, has been a great champion since Frank died. She's down here working Congress today. She's been on the phone constantly. The staff that Senator Lautenberg had who worked on this 15 years, they've been advising her and they've stayed totally engaged.

  • 10:14:03

    UDALLAnd so I think it's very, very appropriate that it bear Frank Lautenberg's name and he always thought if you could pass a bill like this, it would do more good for his children and grandchildren than anything that he ever worked on. And boy, he worked on smoking legislation and smoking on planes, clean indoor legislation and so that's a big lift if we can really do that and I think we can.

  • 10:14:32

    BEN-ACHOURYeah, well, I mean, it's already passed the House 403-12. I mean, that's some real bipartisanship. I mean, you know, today, you could have a vote on whether kittens were cute and you probably couldn't get that kind of bipartisanship. What was different about this bill?

  • 10:14:47

    UDALLWell, we started off, as I said, with Frank Lautenberg, with a good bipartisan majority and then, David Vitter and I took it over and just worked very, very hard through the committee process to build bipartisan support. When it finally got out of the Senate, we had 30 Democrats and 30 Republicans and it went through on consent. We also had a great team working with us in the House of Representatives, John Shimkus, Fred Upton, Frank Pallone and then, at the end, the leadership came in, Steny Hoyer and Nancy Pelosi, to work very hard to get us that vote.

  • 10:15:26

    UDALLBut you're right. I mean, 403-12, that's a better number than the clean air act amendments which passed our committee here in the Senate in 1991. So this has great bipartisan support. As I've said several times, it's not perfect, but it's a good solid compromise and we should -- this is the window right now to protect people. We have a window. It's been 40 years since we put a strong bill in place. We don't want to miss that window and have another 40 years of not protecting the American public.

  • 10:16:02

    BEN-ACHOURWhen is the Senate going to vote, real quick?

  • 10:16:06

    UDALLWell, we're trying to get a vote today. We're working very hard with the Senate leadership, both Democrat and Republican. I know that Senator Harry Reid just said on the floor that we should do this today. And I spoke with the majority leader McConnell and I believe he wants to do it today so we hope we can do it today or tomorrow. If not, we'll do it when we get back in early June.

  • 10:16:31

    BEN-ACHOURAll right. Thanks, Senator, so much for joining us. Really appreciate it.

  • 10:16:35

    UDALLWell, thank you. And let me just say again, the people that have joined you are really good solid people and I just urge everyone to listen to their thoughts and recommendations because they've really worked on this issue for a long time. Thank you very much. Take care.

  • 10:16:52

    BEN-ACHOURTake care. That was Senator Tom Udall. He's a Democratic senator from New Mexico and co-author of the Frank Lautenberg Chemical Safety for the 21st Century Act. So Dr. Lynn Goldman, really quick, I think many Americans believe that the chemicals in their environment have been assessed for safety. I thought so. Not true, apparently?

  • 10:17:15

    DR. LYNN GOLDMANNo. It is not the case and I think that the problem has been that the statute that is currently in place, the 1976 Toxic Substances Control Act, really envisioned that it could give EPA the authority to assure safety of the chemicals, but it did not actually establish clear expectations on EPA that it would have to do that. And it gave EPA very daunting requirements in order to take any action at all. And so for many years now, we've recognized that we need to amend this law.

  • 10:17:54

    BEN-ACHOURAll right. You're listening to "The Diane Rehm Show." Coming up, more of our conversation on chemical safety regulation.

  • 10:20:02

    BEN-ACHOURWelcome back. I'm Sabri Ben-Achour with "Marketplace" sitting in for Diane Rehm. And with me in studio is Scott Faber, senior vice president for government affairs at the Environmental Working Group, Kate Sheppard, enterprise editor and senior reporter at The Huffington Post, Dr. Lynn Goldman is dean of the Milken Institute School of Public Health at the George Washington University -- she's also former assistant administrator for the EPA's Office of Prevention, Pesticides and Toxic Substances -- and Aric Newhouse, senior vice president of policy and government relations at the National Association of Manufacturers.

  • 10:20:37

    BEN-ACHOURLynn, you were saying just before the break that these -- that many chemicals in our environment are not regulated. So I guess I'd -- I still don't understand I still don't understand the absence of regulation. So if something's in a plastic water bottle, it doesn't automatically get tested first?

  • 10:21:00

    GOLDMANThat's correct. And I think that one of the fundamental issues in the current law, that hopefully is about to be changed, is that it is not a public health standard for safety. It is a standard that requires the EPA to do a balancing of -- with, if you may, health and economics. The new law says that the standards for safety of the chemicals that might be in your water bottle or in your clothing or cleaning products in your home should be based on health only, and particularly that we should be considering the health of infants, children, pregnant women, others who are more vulnerable. That's an enormous change.

  • 10:21:39

    BEN-ACHOURKate Sheppard of The Huffington Post, what was or is the current Toxic Substances Control Act? And why was there such widespread agreement, even from industry, that it wasn't working?

  • 10:21:54

    MS. KATE SHEPPARDSo as Lynn has laid out, there are a lot of big flaws in the Toxic Substances Act as authored now 40 years ago and essentially just let all these chemicals into the marketplace without testing.

  • 10:22:05

    BEN-ACHOURHmm.

  • 10:22:06

    SHEPPARDIt basically allowed chemicals, you know, innocent to be proven -- innocent until proven guilty. And now we're going to actually assess them and make sure that they are in fact innocent before they're put on the market. And that was the biggest, I think, shortfall of the current legislation. I think what has changed is that, one, we have generally the public is more aware of chemicals and more concerned about them. People are asking retailers to stop selling chemicals that have been found to have probable public health concerns. People are demanding products that don't contain these. And retailers have responded by phasing out some chemicals that are particularly problematic.

  • 10:22:46

    SHEPPARDStates have acted. States like California have passed much stronger standards. And then, in turn, more retailers are responding to those state standards and phasing out chemicals. And so between the public demand and retailer demand and then, I think, a lot of the manufacturers have responded because now they're dealing with sort of a patchwork of retailers and states and so they want a more uniform federal standard. So I think all these things have come together to really force Congress to change this law at this point in time.

  • 10:23:13

    BEN-ACHOURScott Faber at the Environmental Working Group, tell us about how the new law would work. We heard some of that from the senator.

  • 10:23:19

    FABERMm-hmm.

  • 10:23:19

    BEN-ACHOURBut what's different about it?

  • 10:23:21

    FABERWell, there -- and you heard this -- but there are at least five really important changes to the law. One is that we no longer are grandfathering or, as Kate said, treating as innocent tens of thousands of chemicals that were in use when TSCA was passed. So those -- EPA now has a mandate to begin to review that backlog of old chemicals that are still being used every day to assess whether or not they are safe. In addition, EPA now has a duty to make a determination whether or not new chemicals -- not the old ones that have been on the market for decades -- but whether new chemicals are also likely to be safe.

  • 10:24:03

    FABERAnd it doesn't get a lot of air time, but the bill also gives EPA important new tools just to get basic data about these chemicals. How hazardous are they? How are they being used? And as Senator Udall said, the bill does provide some new fees -- right now, EPA is at the mercy of congressional appropriators -- and requires deadlines, sets deadlines for the first time. So, in particular, sets pretty aggressive deadlines for chemicals that persist in the environment and build up in our bodies, so-called PBT chemicals and, equally importantly, sets deadlines for companies to comply with these new rules.

  • 10:24:43

    FABERSo within a decade, many of the most dangerous chemicals could finally be regulated because they are these so-called PBT chemicals and because the bill includes important deadlines. There are other important reforms but those are the ones that are probably most important for folks to understand. I would just add one thing that I know people are always confused about, which is there are actually three laws that govern the chemicals that we're exposed to every day, that Congress is only moving to fix one of them.

  • 10:25:14

    BEN-ACHOURYeah. I was going to ask if you thought this was going far enough.

  • 10:25:17

    FABERMost of the chemicals that are in our -- used in our food to make it last longer or look better or taste better, last longer, and most of the chemicals that are in all of our personal care products -- cosmetics, soaps, shampoos, lotions and so ons -- are actually regulated by a different law that is also badly in need of reform. So I -- but this will certainly get at the chemicals that are used in things like carpets, upholstery, furniture, paint strippers -- a lot of things that might be in your home or out in the garage.

  • 10:25:48

    BEN-ACHOURHmm.

  • 10:25:48

    FABERBut it won't get at the things that are in your bathroom or in your refrigerator or pantry.

  • 10:25:53

    BEN-ACHOURHmm. Doctor Goldman, do you think this is a good compromise?

  • 10:25:56

    GOLDMANAbsolutely, I do. And, you know, and following up on what Scott just said, many of the chemicals that are in our cosmetics and that will not be covered under this law are, nonetheless, chemicals that are otherwise covered by EPA. So, for example, formaldehyde -- everybody knows about formaldehyde being in the wood products.

  • 10:26:16

    BEN-ACHOURYeah.

  • 10:26:16

    GOLDMANBut formaldehyde is also often in shampoo and all kinds of other consumer products. And so the ability of EPA to finally get health information out to public about these chemicals is going to be extremely helpful when the public is also looking at consumer products and -- that are regulated by FDA and by other agencies. And generally, for public health, I think that one of the other issues that I think has been extremely important is that the current law keeps a lot of the information that EPA has protected from view by the public. When I was at EPA, I tried to share that information with the state public health and environmental agencies and we were not allowed to do that because of the way...

  • 10:27:03

    BEN-ACHOURWhy not?

  • 10:27:03

    GOLDMAN...the way the law was written, they weren't allowed to see the information. And so when we've had incidents like that chemical spill that happened in West Virginia...

  • 10:27:13

    BEN-ACHOURYeah. We already talked about that.

  • 10:27:13

    GOLDMAN...and contaminated the drinking water...

  • 10:27:14

    BEN-ACHOURYeah.

  • 10:27:15

    GOLDMAN...for an entire community, the community did not have that information on tap. It took days and days and days for that information to come out. And what -- but when you really need that information is when you're doing the response in the first hours to days after a spill like that. The new law will give that information to public health, to the medical community, people who need that information on an immediate basis.

  • 10:27:42

    BEN-ACHOURAric, from the perspective of manufacturers, what was not working about the old law? What problems have you had?

  • 10:27:50

    MR. ARIC NEWHOUSEWell, you know, we've talked about the underlying challenges that are out there and the rigidity of the law that we've faced for the last 40 years. What that has meant in practice is that, you know, again, we kind of talked about all the things around us that we touch on a day-to-day basis that is impacted by the chemical sector and the chemical community. And chemicals are a feedstock into a whole host of products. But then they're also used in the process of making things. And, you know, I just look around this room and the desk, you know, the ink on the paper, all this is chemicals. We're just surrounded by it. All that stuff is made by manufacturers.

  • 10:28:24

    BEN-ACHOURHmm.

  • 10:28:24

    NEWHOUSESo the 12 million Americans that are involved in the manufacturing community and their families have a real stake in this because everything they make is going to be impacted by this. Because, again, it is so involved in everything we do. So the industry -- the manufacturing community -- again, the rigidity of the law -- you've got a law that's in place for 40 years, it's a completely different world. So lawmakers in the 1970s thought, hey, look, this law will fix it and this law will allow the fair, even-handed regulation of chemicals. The world's a very different place. And the manufacturing community is using chemicals in different ways. They're introducing in the neighborhood of 700 new chemicals a year...

  • 10:29:03

    BEN-ACHOURHmm.

  • 10:29:04

    NEWHOUSE...into the marketplace. So that rigidity has allowed states -- and building on a comment that Kate made -- the rigidity has allowed states to step into regulate them. And the concern the manufacturing community has is really what this means on a day-to-day basis. If you're making a product in Cleveland, Ohio, and you want to sell it into an Indianapolis and you want to sell it into Pittsburgh, Pa., you may have to make three different products. That just doesn't work.

  • 10:29:28

    NEWHOUSEI mean, if you've made it through the economic challenges of the last 20 years, if you made it through the Great Recession of '08, '09, you've been innovative. You've had to change your product. You've had to constantly outwork and outthink not only domestic competition but your national competition. When we talk in the business community about reg reform, about the regulatory burden, about red tape, it's this kind of stuff, where we just need clean, clear, reliable rules of the road.

  • 10:29:56

    BEN-ACHOURWill this change that, though? I mean, aren't states still going to be allowed to do their own thing? Or are they not?

  • 10:30:04

    NEWHOUSESo, for us, giving the EPA the ability to do what the original I think was intended to do, that's what matters here. So the underlying -- so again -- manufacturers were committed to safety. We want to sell safe products. I mean, again, we're parents, grandparents, we live in communities. We're trying to do the right thing on a day-to-day basis. This law gives us the ability -- gives us some certainty. And it says the marketplace that cares about safety and should care about safety -- it says the marketplace, the product that you're putting into your house, the car that you get into every morning to drive to work, you're going to be safe in that environment. That's why this matters.

  • 10:30:46

    NEWHOUSESo, again, it gives -- it breaks the rigidity and gives the EPA the ability to do what was intended to be done originally.

  • 10:30:56

    BEN-ACHOURScott, are -- there are some limits on states in this law. Do they concern you?

  • 10:31:03

    FABERThey do. Because frankly we don't yet know whether states will continue to play the role of being the only, so far, cop on the chemical beat, as Senator Udall put it. Because TSCA has effectively been broken since 1991, because of a court decision, states have stepped into the breach. They -- more than 30 states have taken steps to restrict or even ban certain chemicals. Under this new law, there's a new, unprecedented version of preemption or limits on state law that would block states from acting to regulate chemicals once EPA has begun to review the chemical.

  • 10:31:43

    FABERTypically, we don't limit state action on a chemical or in other contexts until there's a final rule, until the regulator -- the credible regular has said, we've looked at all the safety data and we've set a limit on how much of this particular chemical can be used. What this law, which is unprecedented, would block state action earlier in that process, when EPA has begun to review one of these high-priority chemicals that Senator Udall talked about. And we're concerned that -- for two reasons. One is, states have build up a lot of capacity and a lot of knowhow and we don't want to lose that. Because even though there are some resources in this bill, there clearly aren't enough to get the job done.

  • 10:32:25

    BEN-ACHOURBut it's not a permanent block, right? It just says states can't do this until the...

  • 10:32:30

    FABERThat's exactly right.

  • 10:32:30

    BEN-ACHOUR...the federal government gets...

  • 10:32:31

    FABERThere's about a three-year pause on state action. There is a provision that allows states to ask for waivers. We don't -- from that pause -- we, honestly, I don't think anyone could tell you how likely states are to use that. And there are some provisions that allow states to act quickly in the -- at -- when EPA begins to think about reviewing a chemical, to go ahead and act, a sort of a 12- to 18-month window, when states can still act.

  • 10:32:57

    BEN-ACHOURSo...

  • 10:32:58

    FABERBut it is an unusual version of preemption, an unusual limit on state action. And, frankly, we won't know for some time whether states will continue to use their capacity.

  • 10:33:09

    BEN-ACHOURI'm Sabri Ben-Achour with "Marketplace" and you're listening to "The Diane Rehm Show." If you'd like to join us, you can call 1-800-433-8850. Or send an email to drshow@wamu.org. Or you can find us on Facebook or send us a tweet. We have one question from Twitter which any of you can answer, which is, why did this take so long?

  • 10:33:34

    GOLDMANOkay?

  • 10:33:34

    BEN-ACHOURYeah, go for it.

  • 10:33:34

    FABERGreat question.

  • 10:33:35

    GOLDMANYeah. So I've probably been with this process the longest of any in the room, 22 years. And I think that it's taken a long time because this is a very complicated area in both the law and in regulatory science. And that it has taken a long time to have enough -- a critical mass of people in Congress who were willing to dig down deep into this law, get to know it, understand it well enough that they're confident to move something forward. I would say Senator Lautenberg's leadership was critically needed to make this happen. Senator Udall taking up the mantel after the unfortunate death of Senator Lautenberg. This is what allowed this to move forward.

  • 10:34:18

    GOLDMANIt's very difficult for members of Congress to get down into some of these highly technical areas like the areas that are involved with assessment of, you know, what, tens of thousands of chemicals. It's a daunting task.

  • 10:34:30

    FABERYeah.

  • 10:34:31

    NEWHOUSEToo often, this became a very partisan political fight. And people went to their corners. And the immediate reaction on this issue for too long was to, again, to go to corners. And what we've seen over the last 18 to 24 months has been a real bipartisan, bicameral approach. And it's rare to, you know -- having a conversation about a piece of legislation that passed the House of Representatives with the support of Nancy Pelosi and Jim Jordan and you think about kind of what's facing, you know, the Senate. And Mitch McConnell agrees with the President of the United States on this. I mean, this is -- you don't get these too often. And that middle-ground approach, that compromise, I think really mattered.

  • 10:35:07

    NEWHOUSEAnd I think there's a lot of credit that is deserved here for everybody involved. And this is one of those unique situations where people kind of got it and said, what's the right thing to do for the country, and came around and it did the right thing.

  • 10:35:19

    BEN-ACHOURScott, you say that it was back in the early 1990s that the whole push to reform this law started. And it started with a famous or infamous lawsuit. Want to tell us about that?

  • 10:35:34

    FABERSure. So EPA tried to ban asbestos, which has been banned in now more than 50 countries, a known carcinogen that should have been banned a long time ago. EPA tried to ban asbestos and the Fifth Circuit ultimately ruled that EPA didn't have the authority under TSCA, as it was enacted in 1976, to ban something that we know kills about 15,000 Americans every year.

  • 10:36:00

    BEN-ACHOURYeah, of all things, asbestos. The EPA could -- they...

  • 10:36:02

    FABERMm-hmm. And you can literally go on Amazon right now and buy asbestos-lined brake pads in the United States. You can't do it in a lot of other places, but you can still do it in the U.S.

  • 10:36:13

    BEN-ACHOURReally?

  • 10:36:14

    FABERReally. And so that's hopefully one of the first substances that EPA will move to quickly ban, as other countries have done. But what's important about your question, because it's exactly the right focus, the -- what, ultimately, the court said -- and Lynn alluded to this earlier -- this requirement of a balancing of benefits and costs when deciding whether to regulate, not how to regulate but even just whether to regulate, really tied EPA in legal knots. And this bill tries very hard to address that.

  • 10:36:48

    FABERSome legal scholars don't think it goes far enough. But the bill tries to eliminate cost from this threshold consideration of whether or not to regulate things like asbestos and formaldehyde and flame-retardant chemicals that Senator Udall mentioned. So we won't, honestly, we won't know until the first legal judgment, whether or not the Congress has succeeded. But at least this gives TSCA a chance.

  • 10:37:19

    BEN-ACHOURComing up, we'll open the phones. We look forward to hearing from you, getting your calls and your questions. Please stay tuned.

  • 10:40:02

    BEN-ACHOURWelcome back. I'm Sabri Ben-Achour with "Marketplace," sitting in for Diane Rehm. We're talking about the new attempt to regulate chemicals in our daily lives. And we have a lot of great questions. One email from Michael in Tampa asks, I am a civil engineer in the business of drinking water design. It's been for 30 years, and so he's very close to the subject of chemicals in the environment. He would like to point out that there are in excess of 100,000 organic and inorganic human product -- human produced compounds present in our environment.

  • 10:40:36

    BEN-ACHOURIs it simply impractical and nonsensical to imagine a way in which we can obtain meaningful data for even a handful of this vast list of compounds? Dr. Goldman.

  • 10:40:49

    GOLDMANNo, it's not. I think that there are many new methods that are in development right now, and some of which are beginning to come online to very rapidly look at large numbers of chemicals through screening processes called high throughput screening. And I think that's going to be the direction that we need to take in order to make sense of this universe -- as he said, tens of thousands of chemicals. You know, he references all the ones in the environment, some of them we make on purpose, some of them we don't make on purpose.

  • 10:41:20

    GOLDMANAnd so, we haven't even been talking about the ones that are -- get made inadvertently. I think that what's going to be extremely important in terms of EPA being successful with this law is that it comes up with public health based criteria for setting priorities. Which are going to be the high priority ones to go after first, get comprehensive testing, which should be screened?

  • 10:41:43

    BEN-ACHOURHow do you know that?

  • 10:41:44

    GOLDMANWell, there are many flags that are important to look at. I mean, certainly, the ability of a chemical to persist or to accumulate in people is a red flag. That's called bioaccumulation. That's a red flag. The similarities that often occur, one chemical to another, one that we know is toxic, others that have very similar structures, that's very important. That's called structure activity. But also, we're beginning to be able to look at interactions with biological system on a molecular level to see well, is this a chemical that's inert or not?

  • 10:42:23

    GOLDMANIs it in our body? Are we exposed to it day to day? Is it in products that are children are exposed to? These are the kinds of things, that on a common sense basis, we can use to prioritize and in fact that EPA has done. There are also a lot of chemicals that we know are very likely to be safe, and EPA is going to need to establish criteria for the chemicals that are safer and that do not need immediate attention, may never need to be invested in by them and the rest of the community. That's going to be one of the critical steps that they're going to need to take over the next year.

  • 10:43:00

    BEN-ACHOURGood question from Alan in email. How's this going to affect imported products?

  • 10:43:06

    FABERThat's a great question. And there are some concerns among some that there are new barriers to EPA's ability to look at and regulate and ultimately restrict imported projects -- products. Think of, imagine, fluorine that's been treated with Formaldehyde and now shipped to the United States. The law requires that there be a showing that that product is likely to cause an exposure that is the sort -- that ought to be regulated before EPA can act. And certainly, there are some who are concerned that that's a new barrier to EPA action.

  • 10:43:41

    FABERI think, just to follow up on something Lynn said, I think another challenge will ultimately be whether EPA has the resources it needs to get the job done. And we should -- and I think, you know, there's money, industry money provided, but it's -- it may not be enough to ultimately review the thousand or so chemicals that EPA has identified as urgently needing review.

  • 10:44:02

    BEN-ACHOURYeah, Kate, tell us about that. I mean, is the EPA going to increase staffing for this? How are they going to do all this?

  • 10:44:09

    SHEPPARDSo, the bill will take money both from a fee on industry to do the testing. And then also, through Congressional appropriations. And that basically states that Congressional appropriations should not fall under the level at which they are now. But, I mean, there is a larger question. EPA funding has been reduced in recent years. They've had to do staff cuts, so yes, having the resources to do all this work is going to be a big issue going forward.

  • 10:44:32

    BEN-ACHOURWe have a call from Laura in Bartlett, New Hampshire. Laura, you're on the air.

  • 10:44:38

    LAURAGood morning. Since this is one of the most important topics, this is very important to me. I want to know, will this bill expose more animals, primates, beagles, rabbits, mice to the horrors of chemical testing? Because number one, I have learned that much of animal testing is not able to be extrapolated to human beings, two, it's horrifically cruel. White Coast Waste Project has exposed what goes on in some of these research facilities. And then, the last thing, quickly, the combined tens of thousands of chemicals in the environment.

  • 10:45:13

    LAURAThere is no way to know how they are going to interact with each other in our bodies and I really appreciate this program. Thank you very much.

  • 10:45:20

    BEN-ACHOURSure. Laura, great questions. Well, let's start with the animal testing.

  • 10:45:25

    FABERSo, I'll just quickly mention.

  • 10:45:27

    BEN-ACHOURSure. Go.

  • 10:45:27

    FABERThat thanks to the leadership of a lot of legislators, including Senator Cory Booker, there is a provision that's been endorsed by the Humane Society that really makes animal testing, sort of, a last resort that as Lynn alluded to, there are lots of tools now that don't require animal testing in order to assess safety. And EPA has a directive to use those tools and only to use animal testing if those tools fail.

  • 10:45:53

    BEN-ACHOURYeah, and Dr. Goldman, about the, well, if, sure, if you wanted to follow up on that. But also the question about it's one thing to test a chemical alone, it's another to test how it interacts with others.

  • 10:46:02

    GOLDMANSo, two things. In terms of the animals, in addition to encouraging the replacement of animal testing with other kinds of tests to diminish the burden on the animals, and there are often ways to substitute some of the kinds of tests I think the caller was referring to with tests that are -- have, are less burdensome in terms of harming the animals. We were even working on that when I was at EPA and, but I -- to, and what was the second question?

  • 10:46:34

    FABERAccumulative exposure.

  • 10:46:34

    GOLDMANAccumulative exposure.

  • 10:46:35

    BEN-ACHOURAnd interaction of different chemicals.

  • 10:46:36

    GOLDMANThe interactions. And this is a very important issue. There are chemicals that we know are from the same chemical family, and for example, you mentioned, or I think the Senator mentioned Bisphenol A.

  • 10:46:49

    BEN-ACHOURYeah.

  • 10:46:49

    GOLDMANThere are a lot of Bisphenol chemicals and we ought to be looking at them together. And that's something that -- where there's a lot of science to back up the idea that boy, if they're from the same family, we need to evaluate that. But, then we've got to think about other ways that chemicals might be interacting. And there, I think, we still have a lot of challenges in terms of how we do the toxicology. And that we haven't looked, I don't think, well enough at the day to day mixtures that we're exposed to.

  • 10:47:18

    GOLDMANSo all the chemicals that are in gasoline, every time you fill up your car, you're exposed to this mixture of chemicals in the gasoline. Even a common, everyday mixture like that, we don't have a very good understanding of what those chemicals are doing together in your body.

  • 10:47:35

    FABERAnd it's actually been the law on the books since 1958 that we're supposed to be looking at how these chemicals interact with -- especially chemicals used in food, but so far, the agency that's in charge of making sure those food chemicals are safe, the Food and Drug Administration, just haven't done that. Haven't fulfilled their legal responsibilities, so it's important that both FDA and EPA take this challenge much more seriously than they have, thinking through how these mixtures of chemicals ultimately increase the risk of cancer and other serious health problems.

  • 10:48:08

    UDALLAnd Lynn talked about how in her time at the EPA, there was limitations on her ability to share information with the public. I would just kind of pull that string a little bit and say, you know, through this process, we're hopeful, peer review, you know, sound science, you know, the best data available really drives decision making. In that, you know, that the best interests of the American people is the number one issue and driving that, again, is a fact based discussion.

  • 10:48:34

    BEN-ACHOURYou know, Eric, what's the economic impact going to be on companies? Is there one that you guys are fearful of?

  • 10:48:41

    NEWHOUSEWell, you know, so for us, we're in favor of it. Chemical community's in favor of it. The American Chemistry Council. The Chamber of Commerce. The American Cleaning Institute. You know, the backbone of the business community, the Auto Alliance, has really been, kind of, putting the full weight of their associations and their membership behind this effort. You know, for the last two, three years, every year, we've had four or five hundred manufacturers come to Washington and specifically talk to their members of Congress about how this broken rigid system is hurting their competitiveness.

  • 10:49:14

    NEWHOUSEAnd it really has taken a bunch of different forms. It's been, again, the kind of example I used earlier of a manufacturer in Cleveland trying to make a product that can be in different markets. But to pull it up to a 30,000 foot level, you think about making any good. And you're trying to sell into multi-state jurisdictions and/or international. And it's really taken away the fear and the uncertainty that has been driving business decisions for too long. People looked at this and said, I'd like to put this new product to market, but it uses this one chemical.

  • 10:49:49

    NEWHOUSEAnd there's rumblings that the state of X may decide to regulate that chemical and/or prevent me from selling that good into that state. Do I really want to build out the infrastructure to make that product? Do I really want to hire the staff that I would need to make that product? So, taking away this uncertainty, taking away this kind of, again, regulatory, I guess, grey area, I think will give the manufacturing community, again, based on sound science and peer review, a good, clear direction on what the rules of the road are.

  • 10:50:24

    BEN-ACHOURYou know, speaking of sound science, Dr. Goldman, you mentioned BPA. What is the verdict on that? Because I remember when everyone was throwing out their water bottles and getting different kinds of water bottles, because everyone was worried about BPA. Or BPP or BPX. Where are we on that?

  • 10:50:44

    GOLDMANWell, I think that we're still in a place where there's a considerable amount of debate and the scientific community is about exactly where you would draw the line and say a level of BPA is quote unquote safe. And that has been the issue, and at the same time, there's a lot of research that I think is helping to inform us that that line seems to be moving downward to lower and lower levels. It was probably the right thing to do to get the BPA out of the water bottles.

  • 10:51:11

    GOLDMANThe problem was that we didn't do that in a way that was comprehensive, that looked at the potential substitutes. What was going to be put in the water bottles to make the plastic work the way it was supposed to work? Well, it turns out, the other chemicals that were put in were very similar chemicals, except they hadn't been studied. And so, if you replace something with a known toxicity, with something that is unknown, that turns out to be similar, you haven't achieved very much for public health. And there's a hope that I have that this new law will enable EPA to take a much more comprehensive approach than the approach that, say, a state legislature is able to take.

  • 10:51:53

    GOLDMANAnd I think it's been good, as Scott says, that they were able to pass many of those laws. But they don't have the capacity to be able to do those kinds of analyses, nor do they have the ability to get the test data to do the science right. And that has been a real obstacle in terms of these state by state laws really protecting public health the way they should.

  • 10:52:16

    FABERAnd quickly, BPA is another example of a chemical that is often used in food packaging and is not regulated under -- by EPA or affected by the law Congress is going to pass this week. But is -- should be regulated, but is not under a different law that still needs to be improved.

  • 10:52:37

    BEN-ACHOURI'm Sabri Ben-Achour with "Marketplace." You're listening to The Diane Rehm Show. Let's take a call from Anna Lisa in San Antonio, Texas.

  • 10:52:52

    ANNA LISAHello.

  • 10:52:53

    BEN-ACHOURHi, Anna Lisa. You're on the air.

  • 10:52:54

    LISAYeah, here in south Texas, we've been trying to pass local ordinances banning the use of coal tar sealants on roads and parking lots. And the city of San Marcus just passed such a ban a couple of weeks ago. The city of San Antonio is set to do the same. And I understand that under this legislation, anything passed after April 22nd of this year would preempted from being enforced. So, if that's true, how long will we have to wait to pass bans on this coal tar sealant so that we can keep this dangerous chemical out of our water supply?

  • 10:53:31

    BEN-ACHOURThat's a great question, Anna Lisa. Thank you for that. Yeah, that's a topic that's come up in many, many jurisdictions. A lot of people talk about coal sealant in asphalt. Would local initiatives like that be put on hold by this law?

  • 10:53:44

    GOLDMANI think that what this law would do is it would ask local jurisdictions to first request that the EPA prioritize the substance and provide EPA with an opportunity to make a determination in a certain amount of time to take action. But that they can serve as a backstop to EPA. And be able to come in, if EPA does not take action and they have a local -- especially if there's a local problem or a statewide problem, that the law says you -- they have, there is a backstop. They have a way to move something forward.

  • 10:54:17

    GOLDMANNow, this coal tar problem. I mean, coal tar is, frankly, and I mean it's one of the first environmental carcinogens that was identified. The chimney sweep young men would -- who could go up and down the chimneys, developed cancer. And that was, I think, 400 years ago that people realized that, oh, you can develop cancer from an environmental exposure. So, this is a well-known agent and I can't believe that EPA wouldn't seriously look at a petition like that.

  • 10:54:48

    BEN-ACHOURAric, I wonder if this is exactly the sort of situation that industry would be worried about if every different city is passing a different rule, now that EPA can come in.

  • 10:55:01

    NEWHOUSE100 percent yes. So, you know, again, you think if you're making, you know, infrastructure in the United States, and, you know, you're trying to build out an infrastructure to meet the needs of the 21st century for the consumer, for the economy, for the manufacturing community. And, you know, you're about to take the state contract in the state of Texas, the state of California, the state of Florida, and as you kind of begin to get into the locality, there's -- you can only use this, or you can only use that.

  • 10:55:26

    NEWHOUSEYou can only use the other thing. That gets really, really complicated. And some companies, again, manufacturing communities, construction community, may look at this and say, I can't, I can't do that. I can't make 36 different versions of this product. I don't have the infrastructure, I don't have the capital, I don't have the resources, I'm going to not build it. So, the choice we have is, do we move ahead in a way that is science based, peer reviewed, and gives some certainty, or do we move ahead in a way that, you know, really cripples the manufacturing community and puts people out of work?

  • 10:56:03

    BEN-ACHOURKate, yeah?

  • 10:56:04

    SHEPPARDI wanted to say, in addition to giving that assurance to manufacturers, it's also ideally going to give more assurance to people who are buying these products because right now, it's sort of left out there for people to figure out on their own, whether or not something is really safe or not. And so, people will say, well okay, maybe this chemical looks bad, I'm not going to buy that. So then retailers say, well, I guess we shouldn't sell that chemical, but it's just really hard, as a consumer, to decide, you know, what exactly is -- what is the current science? What is safe?

  • 10:56:29

    SHEPPARDAnd then, people tend to think that the EPA is doing that, and that has not been the case.

  • 10:56:31

    BEN-ACHOURThat's not been the case.

  • 10:56:31

    SHEPPARDAnd so, now, hopefully, people may actually be able to have real information available.

  • 10:56:37

    FABERBut, I'll just quickly add that the caller's question gets right to the heart of why the environmental working group doesn't support this bill. Which is that this new, these new limitations, this new version of preemption could block state and local actions before EPA has ultimately decided whether or not to issue a final rule. And so, for at least three years under this new law, the county in which the caller is talking about would be blocked from acting to limit how coal tar is used.

  • 10:57:12

    BEN-ACHOURAll right, well, we'll leave it there. I'm Sabri Ben-Achour with "Marketplace," sitting in for Diane Rehm. Thanks everyone for listening.

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