Updating Chemical Control Law

At a recent Senate hearing, representatives of the chemical manufacturing industry were unified on a single point: Congress should consider updating the nation’s chemical control law. But rifts among the industry became clear when they delved into details on what, if anything, lawmakers should do to change the Toxic Substances Control Act (TSCA).

Officials from Dow Chemical and DuPont, two of the largest U.S. chemical manufacturers, called for explicit reform of TSCA. They offered a number of specific changes they said would improve that 1976 law.

In contrast, the president of the National Petrochemical & Refiners Association (NPRA) took a more guarded approach. He endorsed the current system as “a solid foundation” while supporting congressional review and “responsible modifications.”

And staking out a position between NPRA and the big chemical companies was a representative of the Society of Chemical Manufacturers & Affiliates (SOCMA). While making some concrete recommendations for change, she warned that TSCA modernization should be done in a way that protects an industry fighting both recession and growing foreign competition.

The industry officials spoke at a March 9 Senate Environment & Public Works Subcommittee on Superfund, Toxics & Environmental Health hearing to garner input from industry on TSCA reform.

DuPont’s stance on TSCA has evolved over the years, moving from wanting the law retained as is to calling for reform, said Linda J. Fisher, the company’s chief sustainability officer.

“It is not often an industry asks to be regulated in a more comprehensive way, but that is precisely what we are asking for—regulations that provide greater public and market confidence in the safety of chemicals in commerce, greater predictability, and greater transparency,” she told the Senate panel.

DuPont and Dow are both members of the American Chemistry Council, a trade association representing the nation’s largest chemical companies, which for the past year has called for modernization of TSCA. That organization is calling for Congress to change the law so the Environmental Protection Agency has to determine whether chemicals are safe for their intended uses (C&EN, March 9, 2009, page 24). Currently, EPA examines risks from chemicals but does not deem them safe or unsafe.

SOCMA, an industry trade group whose member companies are mainly small and medium-sized firms, generally endorses the idea of EPA making safety determinations—but it believes that the safety determination shouldn’t apply to all chemicals, said Beth D. Bosley, managing director of Boron Specialties of Pittsburgh.

Bosley, who spoke on behalf of SOCMA, explained, “We do not think that EPA should be burdened with a demonstration that each chemical is safe for its intended use.” Requiring the agency to do so “would just seize up EPA,” she said, “creating a bureaucratic nightmare” that would suppress industry innovation.

Neil C. Hawkins, Dow vice president for environmental health and safety, and sustainability, made a similar point that builds on ACC’s stand. Because a chemical may have multiple uses or applications, safety determinations should focus on uses with high exposure, he said.

In their testimony to the Senate panel, the chemical industry representatives suggested other specific changes they would like to see included in a TSCA overhaul.

For instance, Hawkins said, a revamped TSCA should include incentives for developing greener chemicals. These could include the government giving regulatory review priority to new products or processes that are more sustainable than existing ones, he said. Other incentives could include federal support for R&D on greener chemicals, as well as life-cycle assessments of compounds.

Hawkins also argued that a new federal chemical safety program at EPA should not discriminate against scientific studies conducted by industry. “Research should be judged on the basis of scientific merit, without regard for funding sources of where the studies are conducted”—in academe, government, or industry—he said.

Sen. Sheldon Whitehouse (D-R.I.) raised concerns about protection of trade secrets under TSCA. The law forbids EPA from sharing the information that chemical manufacturers provide to the agency and claim as proprietary data. Historically, EPA has rarely challenged manufacturers’ assertions that their company and chemical identities and other data should be protected.

The Government Accountability Office, states, environmental and health advocates, and ACC agree that this part of the law needs modification to allow EPA to share data with regulators in states and other countries at a minimum.

SOCMA’s Bosley acknowledged that protection of confidential business information is burdensome to EPA. She suggested that under a modernized chemical control law, the agency might charge for protection of companies’ proprietary data. Or, she said, perhaps confidentiality protections could sunset after a certain number of years.

Underlying some of the divergent ideas for reforming TSCA are differences in industry representatives’ views on how well TSCA is working now.

For instance, DuPont’s Fisher described EPA’s current authority under TSCA to compel companies to produce toxicity and exposure data as “cumbersome and time-consuming.” A revamped TSCA, she said, needs a streamlined approach for the agency to gather information it needs.“EPA needs the ability to promptly require industry to provide the right data at the right time,” said Fisher, who was deputy administrator of EPA for two years under former president George W. Bush and held high-ranking positions at the agency for eight years under former presidents Ronald Reagan and George H. W. Bush.

On the other hand, Charles T. Drevna, president of NPRA, argued for maintaining the chemical testing parts of TSCA as written. He said they ensure that the information the agency requires from companies is truly needed.

“Before EPA can require a company to conduct a costly and intensive toxicity test using laboratory animals, it must first have a sound basis,” he told the subcommittee. “The agency must find that the substance in question is used in such a way that there may be a potential for substantial exposure to the chemical to workers or the public.”

Fisher also spoke to a section of TSCA that, at least on paper, empowers the agency to place regulatory controls on chemicals ranging from labeling requirements to bans. But this part of the chemical control law “has proven next to impossible for the agency to successfully implement,” she said.

EPA last attempted to use this authority in 1989, when it banned most uses of cancer-causing asbestos. A federal court overturned the regulation in 1991. Despite the tens of thousands of pages of supporting documents the agency amassed, the court said EPA hadn’t shown that a ban was the least burdensome way to adequately protect human health or the environment.

NPRA’s Drevna said EPA failed in this case not because of inherent shortcomings in TSCA but because the agency did not focus on uses of asbestos releasing the highest concentration of these fibers and did not consider alternatives other than a ban. “Attempts to ban most uses of a substance with readily demonstrable benefits,” he said, “must meet a very high burden of proof.”

Drevna and Bosley stressed that regardless of what Congress does to change TSCA, it needs to fund EPA’s chemical control program adequately. Bosley added that SOCMA supports a reasonable fee for submissions of new chemicals to EPA—called premanufacture notices—that would go directly to the agency to support its chemicals program. The current fee for most of these notices is $2,500, and the money goes to the Department of Treasury instead of the agency.

At the hearing, Sen. Frank R. Lautenberg (D-N.J.), chairman of the subcommittee and a proponent of overhauling TSCA, said he plans to introduce reform legislation soon, but did not indicate when or specifically what it would include.