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Just days before Memorial Day, the U.S. Senate seemed poised to pass a long-overdue, sweeping overhaul of the decades-old, ineffective law governing toxic substances, including asbestos. After all, the legislation had unusual bipartisan support and had just passed the House of Representatives by a vote of 403-12. It also was being supported by such disparate groups as the Environmental Defense Fund, the U.S. Chamber of Commerce, and the American Chemistry Council. In May, the Asbestos Disease Awareness Organization (ADAO) also offered their support after significant changes were made to the bill to make asbestos a priority.
But then a single U.S. Senator, Kentucky Republican Rand Paul, raised objections on the Senate floor and blocked the bill from being passed under a fast-track procedure, delaying the Senate vote, at least temporarily, and frustrating the bill’s supporters. Now, with the Senate back in session beginning today, Congress once again appears to be on the verge of approving the bill, and the Obama administration has indicated that the president intends to sign it.
By most accounts, the Frank R. Lautenberg Chemical Safety for the 21st Century Act is a significant improvement over the weak, nearly 40-year-old Toxic Substances Control Act (TSCA). Among other things, the new bill would subject thousands of chemicals to environmental testing and regulation for the first time and give the Environmental Protection Agency (EPA) additional powers to regulate toxic substances, including asbestos – a move that could eventually pave the way for asbestos to be banned in the United States.
However, the bill also has serious flaws, both supporters and critics say, and it doesn’t provide for immediate or fast action. In the case of asbestos, for instance, it could take seven to 10 years before asbestos is banned, despite an overwhelming scientific consensus that asbestos is a carcinogen.
“This is a huge victory for the asbestos victim community, but to be honest, this is a…compromise bill,” said Linda Reinstein, president of the ADAO, which represents asbestos victims and supports the legislation. “It's a step in the right direction, but it doesn't go as far as myself and the ADAO community would have hoped. While it empowers the EPA to ban asbestos, it doesn't necessarily require the agency to move expeditiously through that process. ”She added, “ADAO wanted asbestos to be banned in three years or less, but it may take as many as seven years to assess, regulate and ban asbestos.”
A Failure on Behalf of Public Health
Alex Formuzis of the Washington, D.C.-based Environmental Working Group, an environmental group that researches toxic chemicals and advocates for public health, was sharply critical of the bill.
“While there are some parts of the legislation that are an improvement over current law, holding those up as ‘comprehensive reform’ to the worst environmental law on the books is hardly a victory on behalf of human health and the environment.” Formuzis told Mesothelioma Cancer Alliance. “There are many problems with the plan, including making it hard for states to act to protect its own citizens, not requiring adequate funding from the chemical industry itself, and not eliminating ‘cost’ from EPA’s consideration on whether to regulate chemicals.”
He continued, “Under this bill, asbestos and other notorious toxic substances could, at best, be banned or restricted within a decade. And at worst, companies could tie up EPA’s authority in the courts, much like what happened with asbestos 25 years ago. The possibility that asbestos, under this proposal, could remain legal and in use for another 10 years or longer is, in our opinion, a failure on behalf of public health – not to mention the memories of the tens of thousands who have died from asbestos-triggered disease.”
An estimated 15,000 Americans die from mesothelioma and other asbestos-related diseases each year. Though it hasn’t been mined in the United States since 2002 and its use has declined significantly, American businesses still legally import, use and sell both raw asbestos and products made with it. Scientists and government agencies warn that any exposure to asbestos carries risks.
The administration of former president George H.W. Bush did attempt to ban asbestos. In 1989, the EPA issued a final rule banning most asbestos-containing products under the authority of the Toxic Substances Control Act (TSCA). But two years later, the EPA ban was overturned by the U.S. Court of Appeals for the Fifth Circuit, a decision that established a precedent that made it extremely difficult for EPA to ban any dangerous chemical.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act appears to remove that hurdle, according to ADAO’s Reinstein.
“One of the best things this bill does is to remove many of our concerns from the equation when an asbestos ban is considered,” Reinstein said. “Per legislative text, substances that ‘present an unreasonable risk of injury to health or the environment,’ will be regulated ‘without consideration of costs or other non-risk factors.’” She added that asbestos is expected to be one of the first 10 substances to be evaluated because of its known toxicity to human health.
A Long and Winding Road to Reform
Scientists, environmentalists, and consumer and health advocates have for years been trying to fix the TSCA, but their efforts have not been successful, largely because of opposition from the chemical industry. The current bill, though imperfect, has broad support among a wide array of groups. Its main sponsors in the Senate are Democrat Tom Udall of New Mexico and David Vitter of Louisiana.
After passing overwhelmingly in the House of Representatives last month, the bill seemed to be sailing towards Senate approval right before Memorial Day. But on May 26, Sen. Paul blocked quick consideration of the bill in the Senate, saying that he hadn’t had time to read the bill. Under the Senate rules, Republican leaders needed unanimous consent to fast track the bill.
Paul’s actions frustrated some of his fellow lawmakers and advocates who have been trying to reform the chemical safety law for years.
In a blog post titled “TSCA reform on hold again – and over what this time?” Richard Denison, a senior scientist with the Environmental Defense Fund, wrote “Well, it looks like American families will have to wait a bit longer for better protection from toxic chemicals, with today’s decision by Sen. Rand Paul to place a hold on the Frank R. Lautenberg Chemical Safety for the 21st Century Act.”
ADAO’s Reinstein said she too was dismayed by Paul’s delaying tactics, though she expressed optimism that the bill would soon be passed.
“I am frustrated Sen. Rand Paul is blocking the passage of the Lautenberg bill and preventing it from swiftly passing the U.S. Senate by unanimous consent,” Reinstein said. “After working toward this reform for more than six years, I would have loved to see it finally pass and be signed into law before Congress went on Memorial Day recess, but this delay won’t derail the bill, it’s not a matter of ‘if’ – only when.
“They have the votes in the Senate, and the White House has already expressed support, so I'm confident it will be passed pretty quickly when Congress reconvenes and be quickly signed into law before July,” she said.
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