Converging On Reform

Two freshman senators attending their first hearing on the federal chemical control law might have expected discord among the witnesses. This would have been reasonable because those testifying before them on Feb. 3 represented divergent interests—the chemical industry, the environmental community, and the Obama Administration.

Instead, Sens. Michael R. Johanns (R-Neb.) and John Boozman (R-Ark.) heard harmony—albeit not unison—in the witnesses’ calls to modernize the Toxic Substances Control Act (TSCA). That law, which governs the manufacturing and use of chemicals, has remained virtually unchanged for the past 35 years.

But over the past two years, the chorus for TSCA reform has grown. For instance, the American Chemistry Council (ACC), a leading chemical industry group, added its voice to those from a growing number of environmental and health advocates and businesses that use chemicals calling for federal legislators to revamp this law. The Obama Administration, too, backs an overhaul of this law.

These factions have converged on a central theme: Congress should revise TSCA and give the Environmental Protection Agency the authority to determine the safety of commercial chemicals.

In contrast, the agency currently can regulate a chemical already on the market only after meeting two criteria. First, it must show that the substance poses an unreasonable risk to human health or the environment. Second, EPA must demonstrate that it chose the least burdensome alternative for controlling that risk, which is a legal hurdle that is extremely difficult to meet. The agency hasn’t attempted to regulate chemicals on the market since a federal court struck down the agency’s 1989 ban of most uses of asbestos, even though the agency assembled reams of documents backing its case for phasing out the cancer-causing fibrous mineral.

“TSCA must be updated and strengthened if EPA is to do its job,” which is to protect human health and the environment, said Stephen A. Owens, EPA assistant administrator for chemical safety and pollution prevention. Owens described a litany of problems with TSCA at the hearing before the Senate Environment & Public Works Subcommittee on Superfund, Toxics & Environmental Health.

Industry officials also asked the subcommittee to revise the statute, calling for risk-based safety assessments of chemicals. This should take into account hazard and exposure information, said Steven J. Goldberg, BASF vice president for regulatory law and government affairs.

Kelly M. Semrau, senior vice president for global corporate affairs, communications, and sustainability at S.C. Johnson & Son, said empowering EPA to make safety determinations for chemicals would strengthen consumer confidence. She said this is vital for her company, which makes widely used products, including Pledge and Windex cleaners and Raid insecticides.

Calvin M. Dooley, president and chief executive officer of ACC, assured lawmakers at the hearing that a federal safety determination for chemicals doesn’t have to conflict with support of innovation within industry. “We can do both,” he said.

The witnesses also touched on the growing number of state restrictions on specific chemicals. This growing patchwork of state regulations is a headache for many companies that market their products across the U.S.

“These various state initiatives could have the undesirable effect of establishing differing sets of requirements for evaluating chemicals; assessing potential alternatives; and, if necessary, eventually substituting chemicals,” Semrau said. A modernized TSCA will lessen the perceived need for state regulation, she said.

Frances Beinecke, president of the environmental group Natural Resources Defense Council, told the Senate panel the situation will get worse if Congress doesn’t move on TSCA.

“States will continue to act in the face of inaction at the national level while public trust in the safety of numerous products will continue to decline. That prospect should be enough to keep everyone at the table until a deal can be reached” to recast TSCA, Beinecke said.

In addition to requests for federal safety determinations on chemicals, the Senate panel heard other ideas about reform from Lynn R. Goldman, who oversaw the TSCA program at EPA during the Clinton Administration.

“We now have the science of green chemistry, which didn’t exist in 1976,” the year TSCA was signed into law, Goldman said. A rewritten statute could reward companies that develop new substances that are alternatives to more toxic ones, she said.

Congress should consider incorporating internationally developed chemical management strategies into a rewrite of TSCA, said Goldman, dean of the George Washington University School of Public Health & Health Services.

One strategy is the Globally Harmonized System of Classification & Labeling of Chemicals, which was designed to facilitate international trade, she said. This system includes standardized cautionary statements and symbols for properties such as flammability, corrosivity, and ecotoxicity.

Another is a 2006 agreement, the Strategic Approach to International Chemicals Management, Goldman said. This accord consists of guidelines—crafted with input from governments, industry, and citizen groups—for the safe manufacture, transportation, use, and disposal of chemicals.

As it revises TSCA, Congress should also include language for the U.S. to implement the Stockholm Convention, a global treaty to restrict and eliminate persistent organic pollutants, Goldman said.

Amid the calls for reform, Johanns, the Nebraska senator who served as secretary of agriculture under President George W. Bush, asked witnesses to describe the parts of TSCA that work well.

Dooley and Goldman endorsed the section of TSCA that governs the introduction of new chemicals into the U.S. market. Under it, EPA generally has 90 days to review an application for manufacturing or importing a new substance.

Under TSCA, the agency pioneered the use of structure-activity relationships to estimate the toxicity of novel compounds, Goldman pointed out. However, she said, EPA needs to upgrade its methods to include computational methods to screen new chemicals.

Sen. Frank R. Lautenberg (D-N.J.), chairman of the subcommittee, noted that demands for recasting TSCA are coming from an increasingly diverse array of interests. Faith groups are joining the chorus, Lautenberg said at the hearing. He cited a Feb. 3 joint letter supporting TSCA reform from the Episcopal Church USA, Evangelical Lutheran Church in America, National Council of Churches USA, Presbyterian Church USA, Union for Reform Judaism, United Church of Christ, and United Methodist Church.

Lautenberg said he sees an opportunity to get TSCA reform legislation passed within two years. Lautenberg has long championed overhaul of this law, introducing bills in 2005, 2008, and 2010. He said he will work with Republicans “to develop a risk-based system—built on sound science—that protects health and allows companies to continue to thrive.”

Whether freshmen Johanns and Boozman will be convinced to join Lautenberg’s effort isn’t clear. But the possibility exists, especially because the New Jersey Democrat has gained support from a powerful member of the GOP.

Sen. James M. Inhofe of Oklahoma, the top Republican on the full Environment & Public Works Committee, pledged to work with Lautenberg to develop a TSCA reform bill “based on the best available science, one that protects human health, and one that balances the need to protect jobs and economic growth.”