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Policy

Recasting TSCA

Congressional hearing probes safety and other provisions of bill to reform chemical control law

by Cheryl Hogue
August 16, 2010 | A version of this story appeared in Volume 88, Issue 33

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Credit: Newscom
Cook, right, uses a BlackBerry that he borrowed from Dooley to make a point about chemical safety.
Credit: Newscom
Cook, right, uses a BlackBerry that he borrowed from Dooley to make a point about chemical safety.

A major Chemical industry organization has for the past year been calling for a fundamental shift in how the Environmental Protection Agency regulates commercial substances. After consulting with business groups and activists, lawmakers in the House of Representatives responded in July by introducing legislation that would do just that.

The resulting legislation, however, contains key provisions that the requesting organization—the American Chemistry Council (ACC), an association of chemical manufacturers—staunchly opposes. Another industry group, the Society of Chemical Manufacturers & Affiliates (SOCMA), strongly disagrees with parts of the measure, too. Lawmakers’ reactions to the bill are split along party lines, with Democrats generally in favor of it. Environmental and health activists are by and large supportive of the measure.

At issue is reform of the Toxic Substances Control Act (TSCA), the federal law governing industrial chemicals. Dating to 1976, TSCA authorizes EPA to regulate a chemical that is already on the market only when the agency can demonstrate that the substance poses an unreasonable risk to people or the environment. EPA must also demonstrate that its regulation is the least burdensome alternative for controlling that risk.

Meeting these legal requirements is extremely difficult for EPA, according to the Government Accountability Office, the investigative arm of Congress. Consequently, the agency hasn’t attempted to regulate any chemicals on the market since a federal court in 1991 struck down a ban of asbestos products (C&EN, March 9, 2009, page 24).

Chemical industry groups and environmental and health activists are asking Congress to recast this law and give EPA the authority to determine whether substances are safe.

The House bill, H.R. 5820, would give EPA this power. The problem, according to the chemical industry, involves the benchmark that the bill sets for the agency to use when assessing whether a substance is safe.

Under the measure, EPA would have to ascertain a “reasonable certainty of no harm” from uses of a chemical. The bill’s main authors, Reps. Bobby L. Rush (D-Ill.) and Henry A. Waxman (D-Calif.), modeled this safety standard after one in the 1996 Food Quality Protection Act, which regulates pesticides in the nation’s food supply.

At a July 29 hearing on H.R. 5820, Calvin M. Dooley, ACC president and chief executive officer, blasted the legislation’s proposed safety criterion. It would set “such an impossibly high hurdle for all chemicals in commerce that it would produce technical, bureaucratic, and commercial barriers that would stifle the manufacturing sector,” Dooley said. He testified before the House Energy & Commerce Subcommittee on Commerce, Trade, & Consumer Protection, which Rush chairs.

The safety standard in the food protection law applies only to pesticides that are used on crops that people eat, Dooley continued. But commercial chemicals are not intended to be used on foods, he argued, and should not be held to the same standard.

In response, fellow witness Kenneth A. Cook, president of the Environmental Working Group (EWG), asked to borrow the ACC executive’s BlackBerry. Dooley had used the quintessential Washington accessory as a prop during his testimony as an example of the technological progress made possible by chemical industry innovation.

Endorsing H.R. 5820’s safety benchmark, the environmental activist held up Dooley’s phone and declared: “This ought to be as safe as a pesticide.”

But uses of industrial chemicals aren’t as readily identifiable as those of pesticides, noted Beth D. Bosley, president of Boron Specialties of Pittsburgh. This makes the “reasonable certainty of no harm” standard inappropriate, said Bosley, who testified on behalf of SOCMA. In addition, Dooley raised questions about a part of the bill that would require EPA, as part of a safety assessment, to consider people’s aggregate exposure to a substance. This would include exposures from uses of a substance—including as a food, food additive, or cosmetic—that are exempt from the chemical control regulation. “It is not clear to us how any company could actually do that,” he said.

But other witnesses and some lawmakers argued that the bill would require EPA, not chemical makers, to conduct analyses of people’s aggregate exposure to a substance.

Rep. Diana L. DeGette (D-Colo.), a member of the subcommittee and a cosponsor of the bill, said lawmakers intend to clarify who will conduct the analyses as they fine-tune the language of the legislation.

In contrast to ACC’s and SOCMA’s take on H.R. 5820, positive reaction to the bill came from an executive of a business that uses chemicals.

Howard Williams, vice president of Construction Specialties, a manufacturer of green building products, said the bill would help inform and support companies that provide environmentally sound goods. These businesses are a powerful and growing sector of the economy, he told the House panel. They are responding to government mandates on environmentally preferred purchasing and to Leadership in Energy & Environmental Design building standards, he said.

Legislation to modernize TSCA needs to help downstream users garner information about product ingredients, Williams pointed out. The current law does not require or facilitate disclosure of a product’s chemical components.

Specifically, Construction Specialties wants to know which chemicals are present at concentrations of 100 ppm or more in the materials it uses to craft building products, Williams continued. The company seeks ingredient information to determine whether a material contains carcinogens or persistent, bioaccumulative, and toxic substances, he said.

“Identifying the chemical composition of our products is a costly and time-consuming process,” Williams said. Although this is “a profitable and responsible thing to do,” he explained, gathering ingredient information “needlessly delays product development and places an indirect cost burden on the consumer.”

H.R. 5820 would require chemical makers or processors to disclose ingredient and toxicological information about its substances and mixtures to all their known commercial purchasers. However, the bill also allows companies to ask EPA to protect chemical identity as confidential information if they substantiate their claims.

Ingredient disclosure will be the toughest topic that lawmakers will have to grapple with as they rewrite TSCA, Williams predicted.

Meanwhile, another witness at the hearing addressed part of H.R. 5820 that would require EPA to give special regulatory attention to low-income and minority communities that have disproportionately high exposures to industrial pollutants. The agency would have to select at least 20 of these “hot spot” communities and develop action plans to reduce residents’ chemical exposures from all sources. This provision offers hope for residential areas with high exposures to toxic substances, especially for neighborhoods surrounded by a large number of chemical plants, said Mark A. Mitchell, a physician and president of the Connecticut Coalition for Environmental Justice.

Overall reaction to the bill from lawmakers at the subcommittee hearing split along party lines. Democrats on the panel generally expressed support for it. “I have boundless confidence that the chemical industry will figure this out and keep right on going,” Rep. John Sarbanes (D-Md.) said.

In contrast, most Republicans cast the bill as a threat to jobs.

Rep. Stephen J. Scalise (R-La.), who represents a district with several chemical manufacturing facilities, spoke grimly of the measure. The legislation would “severely impact every sector of the economy” and would “cause serious harm to the chemical industry,” he said.

Rep. Ed Whitfield of Kentucky, the top Republican on the subcommittee, said the safety standard in H.R. 5820 would be so complex that it remains doubtful whether any chemical could meet it. He also expressed concern that the bill would abolish TSCA’s provisions allowing regulation only when a substance poses an unreasonable risk and regulation is the least burdensome way to control the risk.

“It’ll help us lose more U.S. jobs,” Whitfield said of the bill.

EWG’s Cook took issue with Republican arguments that H.R. 5820 would raise U.S. unemployment. “If innovation comes to embrace safety, we will be creating jobs here,” he contended.

Further supporting the bill’s ability to drive innovation was Richard A. Denison, senior scientist for the Environmental Defense Fund, an environmental group. The bill would help U.S. chemical manufacturers compete in a global economy where customers are demanding safer chemicals and better information about the products they buy, he told lawmakers. “Far from impeding innovation,” he said, “H.R. 5820 would allow new chemicals to enter the market without safety determinations if they are intrinsically low hazard, are safer for particular uses than chemicals already on the market, or serve critical uses.”

This debate may drag on for some time because the passage of a TSCA reform bill in 2010 seems unlikely.

Rep. Joe Barton (R-Texas), the top Republican on the House Energy & Commerce Committee, said at the hearing that lawmakers are unlikely to move the measure this year. He also declared that TSCA “in my opinion is working well” in its current form.

Nonetheless, the subcommittee hearings on TSCA revision held since early 2009 have set the stage for legislative action next year, Barton said.

If Republicans take control of the House in the November elections, Barton would assume the gavel of the Energy & Commerce Committee. Consequently, he would hold great sway over TSCA reform efforts and could move the discussions in a different direction.

Meanwhile, Democrats are pressing forward with H.R. 5820. Without providing a time frame, Rush said his subcommittee would hold additional hearings on H.R. 5820 and vote on the bill “sometime in the future.”

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