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.