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New Senate Bill Would Weaken Existing Protections from Unscrupulous Overseas Suppliers, Putting Public and U.S. Manufacturers at Risk

Senate Bill 697 as introduced in March 2015 to reform the Toxic Substances Control Act (TSCA) contains a provision that threatens the public’s health by weakening protections that are currently in place.

Strong public health standards are important, but they mean little without an effective program to ensure compliance. Worse, they put firms that play by the rules at a competitive disadvantage. When it comes to hazards that are difficult to recognize, such as water damage, lead-based paint, food contaminants, and chemical risks, the firm that cuts corners, whether a landlord, a painting contractor, or a retailer, has an unfair edge in the marketplace. Unfortunately, all too often, the health of the most vulnerable among us suffer the consequences.

Congress made compliance assurance a top priority when it added Title VI to the TSCA in 2010 to federalize California’s strict standards for formaldehyde emissions from composite wood products. The industry leaders and public health advocates (including NCHH) who convinced Congress to act knew that California lacked the tools to regulate imports effectively. They saw that, while TSCA was too weak to set strong public health standards, the law provided the means both to ensure compliance and to provide a level playing field for U.S. manufacturers. Violators were subject to civil and criminal punishment under sections 16 and 17. Citizens, states, and competitors could enforce the law under Section 20 if the Environmental Protection Agency (EPA) didn’t. And, just as importantly, rules adopted pursuant to Section 13 of TSCA require that importers had to certify—essentially guarantee—that the products they imported complied with the law.
This import certification provided the means for the agency and the public to hold the importer responsible, leveraging the firm’s cooperation in an investigation of the supply chain to expose the culprit. It also provided a strong incentive for the importer to be vigilant in selecting trustworthy suppliers and verifying compliance using the finished product enforcement testing method incorporated into California’s formaldehyde regulation.

The wisdom of this approach became clear in March when CBS’s 60 Minutes used California’s enforcement test method to show that laminated flooring imported from China by Lumber Liquidators did not comply with the state’s standards. The 60 Minutes research went beyond those deconstructive tests and demonstrated that the sample flooring exceeded California’s health standards for formaldehyde in a typical home setting using another test method developed by the California Department of Public Health.

Unfortunately, EPA did not meet the January 1, 2013, congressional deadline for the agency to promulgate the rules. The agency does not expect to finalize the rules until the end of 2015, and they would not go into effect until late 2016. Without final rules, Lumber Liquidators was under no obligation to make an import certification under TSCA Section 13.

An additional problem arose when senators Tom Udall (D, NM) and David Vitter (R, LA) introduced S. 697 (the "Udall-Vitter Reform Bill") in March 2015. Unless changes are made in the final version, the bill would render TSCA Section 13 a paper tiger. Instead of guaranteeing compliance, importers would only need to a make a “reasonable inquiry” and certify compliance to their “best knowledge and belief” (proposed TSCA Section 13(b)(2)). For articles like flooring, a “reasonable inquiry” consists of a “good faith reliance by an importer on a certification by the supplier that the imported article satisfies the applicable certification requirements” (proposed TSCA Section 13(b)(3)(B)). The proposed import certification provision would make it much more difficult for EPA to ensure that imported products comply with the law and that U.S. manufacturers share equal footing.
The best solution is to strengthen TSCA without weakening Section 13.

NCHH Takes to the Hill

Last Tuesday, March 17, a small but mighty group, led by Julie Kruse, NCHH's Director of Policy, visited 22 congressional offices in Washington, DC, to recommend full funding in fiscal year (FY) 2016 for three crucially important federal programs. Due to governmental belt-tightening over the last several years, funding to these programs was cut drastically; and while some of the funding has been partially restored, there is still much work for these programs to do, and every dollar is important.

NCHH is asking for the CDC's Healthy Homes and Lead Poisoning Prevention Program to receive $29,257,000 (up from $15,222,000 in FY15), CDC’s National Asthma Control Program to receive $30,596,000 (up from $27,528,000 in FY15), and HUD’s Office of Lead Hazard Control and Healthy Homes to receive $120,000,000, up from $110 million in FY15. A recent history of appropriations for these programs is available here.

Seventeen attendees, hailing from seven target states (North Carolina, Ohio, Georgia, Connecticut, Rhode Island, Washington, and Maryland), joined Ms. Kruse, Acting Director Jonathan Wilson, and Michael McKnight from the Green and Healthy Homes Initiative on Capitol Hill to present to senators and representatives in all six congressional office buildings. Their purpose was to educate members of Congress who will soon make critical funding decisions on the importance and impact of lead poisoning prevention, lead hazard control, and healthy homes programs for their constituents’ respective states and districts. Parents whose children were impacted by lead hazards in the home, children’s health advocates, and public health and healthy housing practitioners all joined Ms. Kruse and Mr. Wilson to share their stories.

Omar Bah told senators Jack Reed (D, RI) and Sheldon Whitehouse (D, RI) and representatives David Cicilline (D, RI-1) and James Langevin (D, RI-2) how a HUD-funded remediation grant from the City of Providence made it possible for him and his wife to afford the necessary improvements to the home that saved his family from lead poisoning. Mr. Bah is an African refugee who came to the U.S. in 2007 with his wife, Teddi, to start a new life. They bought an older home in Rhode Island that they suspected might be a lead hazard, but all of their savings had gone toward their house purchase.

Liz Haverington Silvia of Newport, Rhode Island, also met with congressmen Reed, Whitehouse, Langevin, and Cicilline. She explained how her state’s required blood screening process detected lead in her little boy’s system, the result of her DIY renovation project that was not performed properly—because she didn’t realize that lead was present, something that happens more often than anyone would like to admit. Liz was thankful that the state-mandated screening caught the problem so early, as her son does not appear to suffer any long-term consequences of his lead exposure. She also described the forgivable loan, courtesy of her state and local lead programs, that financed the essential repairs to her home, making it lead-safe after nearly 90 years.

Chris Corcoran, a project manager at the Connecticut Children’s Medical Center, spoke to Congresswoman Rosa DeLauro’s (R, CT-3) office about how his organization and their clients benefit from government money and what they could accomplish with additional funding.

Also in attendance at the meetings was Ms. Lenora Smith from the Partnership Effort for the Advancement of Children’s Health (PEACH), out of Durham, North Carolina. Ms. Smith, supported by her associate, Lawrence Little, artist Damita Hicks, retired social worker and community advocate Dianne Brown, code enforcement officer and chief precinct judge Lester Smith, and Michael McKnight from the Green and Healthy Homes Initiative, spoke to Representative David Price (D, NC-4) about how additional funding would bolster Durham Mayor William V. Bell’s Poverty Reduction Initiative. Ms. Smith specifically referenced Census Tract 10.01, an area of Durham, North Carolina, which is predominantly occupied by African Americans (66.2%) and Latinos (24.3%), in which 61% of residents reported income below poverty level, and in which the average year of construction was 1933. The majority of homes in Census Tract 10.01 require what HUD would consider “major repairs.” The largest population within the census tract are kids below the age of six (approximately 10%); this demographic is the one most likely to suffer from lead poisoning and is at risk for several other home hazards.

Betty Cantley with her sons, circa 1994. Jason Cantley is sitting in the baby seat.Betty Cantley of Cleveland, Ohio, had a very different tale to tell: Her son, Jason, was poisoned as an infant and suffered permanent injury, the result of a contractor renovation that failed to meet lead safety requirements. “[W]hen he started breathing it in,” she told Representative Tim Ryan (D, OH-13), “he was less than a month old; his brain was developing, and his synapses were forming. It was the most crucial point of his life.” Betty’s compelling story described the struggles of a family faced with the news that their son was needlessly poisoned, how they coped, and how essential programs at all governmental levels helped her boy to graduate from high school and become a productive member of society.

These stories from the field illustrate how important it is that government funding to these programs not only stays intact but is fully restored or, better, increased.

Ultimately, the NCHH cadre met with six members of Congress directly, five supportive Republican offices that are new to the issue, and the leading Democrats on the health and housing funding subcommittees in the House and Senate and on the full Senate appropriations committee. We received commitments from the subcommittee leads to fight for full funding. Four representatives NCHH met with added their signature to the House funding letter; in total, 24 representatives signed, which was five more than last year. The Senate funding letter is still open as of this writing and currently has 16 signatures, four of whom met with NCHH’s group.

All in all, it was a very productive St. Patrick's Day!

Sign Our Congressional Funding Letter Today!

Just under two weeks ago, I posted in this space, and asked all of you to sign on to a letter to Congress and  to call your representative to press for funding for lead poisoning prevention, lead hazard control, and healthy homes programs at HUD and CDC. Thanks to those of you who did - we got a record number of sign-ons in the House of Representatives!

We held a terrific Healthy Homes Capitol Hill Day on Tuesday, March 17, with attendees from key states meeting with leaders of the health and housing appropriations subcommittees. Over one-quarter of our meetings were with the senators and representatives themselves, and many of them made a pledge to fight for these critically important programs. (More on this soon!) We hope you can join us on the hill in future years!

But the battle is not yet won until the funding is actually approved. That's why I'm asking you to ACT AGAIN to call your senators and request their support for similar letters circulating there. Signatures are due TODAY, so we need you to call ASAP!

Please follow these two steps now to ensure healthy homes and lead hazard control/poisoning prevention programs continue!

STEP 1: If you haven't yet, sign your organization to the letter to Congress for HUD and CDC funding. And please forward this email to your networks!

STEP 2: Call your senators!

  1. Call the U.S. Capitol switchboard at 202.224.3121 and ask to be connected to one of your senators. If you don't know your senators' names, they can tell you who they are.
  2. Ask to speak with the staff person who handles the health or housing issues for the office.
  3. When you reach the staffer, or leave a message, or speak to the receptionist if the staffer is not available, tell him or her:

    •  My name is __________________.  I'm from __________________ [your city and state].
    • I'm calling to urge the senator to sign on to letters from Senator Jack Reed in support of lead poisoning prevention and healthy homes. The sign-on letter deadline is March 25.
    • These funds will ensure the protection of over 500,000 lead-poisoned children who need CDC- and HUD-funded services.
    • Thank you!
 4.  Now, call your other senator. Follow the first three steps again, simply asking for your other senator.

I can't stress enough the importance of your help on this. It's only with your help that we can win this budget battle.

Fund Healthy Housing NOW!

ACT NOW to ensure continued funding for HUD’s Office of Lead Hazard Control and Healthy Homes and CDC’s Healthy Homes and Lead Poisoning Prevention Program!

The home is the most dangerous place for U.S. families. Nearly six million families live in housing rivaling that of developing countries, with broken heating and plumbing, holes in walls and windows, roach and rodent infestation, falling plaster, crumbling foundations, and leaking roofs. Millions more in all 50 states live in housing with serious health and safety hazards including mold, exposed wiring, radon, unvented heaters, toxic chemicals, broken stairs, missing smoke detectors, and other hazards. Home-based interventions to address health hazards improve health and have a large return on investment: Each dollar invested in lead paint hazard control results in a return of $17 to $221, and each dollar invested in asthma home-based interventions that include education and remediation results in a return of $5.30 to $14.00.

That's why it makes both great common sense and great fiscal sense to direct more funding to the critical government programs that invest money in America's future by making homes safer and healthier. Unfortunately, these programs are always in serious danger of debilitating budget cutting.

Please take these simple steps now to ensure healthy homes and lead hazard control and lead /poisoning prevention programs continue!

STEP 1: SIGN your organization on to the attached letter to Congress for HUD and CDC funding.

Click here to sign on to the attached letter. And forward these links to your networks!

STEP 2: CALL your representative in the U.S. House!

1. Call the U.S. Capitol switchboard at 202.224.3121 and ask to be connected to your representative. (If you don't know who your representative is, the switchboard can tell you based on your address.)

2. Ask to speak with the staff person who handles the health or housing issues for the office.

3. When you reach or leave a message for the staffer (or speak to the receptionist if the staffer is not available), tell him or her:

  • "I'm calling to urge Representative [representative's last name] to sign on to the Congresswoman Slaughter sign-on letter in support of healthy homes and lead poisoning prevention funding for HUD and CDC. The sign-on letter deadline is March 19.
  • "I also urge the representative to submit a request to the health appropriations subcommittee to fund CDC’s Healthy Homes and Lead Poisoning Prevention Program at $29 million.
  • "These funds will ensure the protection of over 500,000 lead-poisoned children who need CDC-funded services.
  • "Thank you!"

STEP 3: Call your senators! (Coming soon!)

Only you can help us win this budget battle.

Formaldehyde and Wood Products

Chinese manufacturing companies have again exported unsafe products into the U.S. On March 1, a 60 Minutes exposé brought back memories of 2005, when thousands of people displaced by Hurricane Katrina suffered from high formaldehyde emissions in the trailers that the federal government provided for them.
The 60 Minutes report revealed that low-cost laminated flooring, purchased from Lumber Liquidators stores around the country, released extremely high levels of formaldehyde that off-gas from the cured glue used to make the fiberboard in the flooring. All but one of the samples from China failed the emissions tests, with some readings as much as 20 times California’s standards. In contrast, the samples from North America all passed. On hidden camera, 60 Minutes filmed workers in three Chinese manufacturing facilities admitting that they knew the wood going to Lumber Liquidators flooring did not comply with the so-called “CARB 2” standards.

When NCHH, Sierra Club, and industry leaders (especially the Composite Panel Association), partnered in 2008 to nationalize California’s tough emission standards for wood products, they recognized the problem and knew that a federal law was essential to ensure compliance by foreign companies importing products to the U.S., as well as to ensure enforceability throughout our nation.
Led by Senator Amy Klobuchar (D-MN), Senator Mike Crapo (R-ID), and Representative Doris Matsui (D-CA), Congress passed the Formaldehyde Standards for Composite Wood Products Act in the summer of 2010, amending the Toxic Substance Control Act (TSCA). Congress acted in a bipartisan manner to protect consumer health and level the playing field between U.S. wood product manufacturers and their offshore competitors.
In that legislation, Congress directed the Environmental Protection Agency (EPA) to issue final rules by the end of 2012, with the rules to be effective a year later. EPA issued proposed rules in June 2013; however, we are still waiting on EPA to issue the final rules 26 months after the deadline.

As a practical matter, the initial deadline was unrealistic for an agency struggling with funding cuts and other pressures. The record shows that EPA waited a year for the White House’s Office of Management and Budget (OMB) to complete its 90-day review. OMB only released the rule after EPA revised its cost-benefit analysis to remove $250 million in estimated annual benefits resulting from 21,000 fewer children developing asthma. Another year was lost when many in the industry strenuously objected to EPA’s science-based decision to go beyond the California Air Resource Board (CARB) requirements – as Congress had authorized– and require third-party testing and certification not only by wood panel producers, as is already required by California, but also by laminators of wood products.

At each step of the process, NCHH sought to move the issue forward. In collaboration with other public interest groups, we submitted comments on the proposed emission standards and alerted EPA that “third-party” auditors in China may be cutting corners. In May 2014, NCHH proposed a compromise to the EPA-industry dispute over testing and certification requirements for laminators. And we called for testing of the finished product so that regulators could verify compliance.

The 60 Minutes story illustrates how critical it is that EPA act and issue its rules implementing the national standard on formaldehyde emissions from composite wood products. Representative Kurt Schrader of Oregon pressed the EPA Administrator Gina McCarthy at a February 25 hearing. In a March 3 letter to Ms. McCarthy, congressional sponsors called for prompt issuance of the final rule. The next day, Senator Ben Nelson (D-FL) reinforced the call, asking for the Centers for Disease Control and Prevention, Federal Trade Commission, and Consumer Products Safety Commission to work with EPA and investigate the issue as the agencies did with the Chinese drywall problems several years ago.

Indeed, it’s time for EPA to act and for the White House to make sure that OMB doesn’t cause more delays. Just as importantly, it’s critical that EPA get the regulation right and do everything possible to keep the situation that reported by 60 Minutes from happening again. Our recent history with these unscrupulous Chinese companies shows that we should be prepared for more cheating. EPA must provide mechanisms to catch these cheaters. This includes third-party, verifiably independent testing and certification, as well as a means to randomly deconstruct and test wood products sold into the U.S. consumer market. To date, EPA has declined to adopt the latter for the national rules, even though California is committed to it. Without such testing, 60 Minutes could not have made clear that Chinese laminated flooring was mislabeled as CARB 2-compliant and emitted dangerously high amounts of formaldehyde, far beyond the bounds of California’s regulations.

EPA's Formaldehyde and Composite Wood Products rule is important for American consumers and especially for the children who are most vulnerable to irritation and toxic exposure. Its implementation is expected to prevent tens of thousands of children from developing asthma and will level the playing field for North American manufacturers that produce safer, compliant products. EPA needs to hold its ground and finally promulgate – and be able to enforce – effective standards for laminators of composite wood products.

UPDATE (May 3): The New York Times interviewed NCHH's Tom Neltner for an article about the EPA's regulation of formaldehyde. Read it here.

UPDATE (May 8): NCHH's Tom Neltner appeared on a CBS News segment about the Lumber Liquidators controversy. Watch it here.

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