A bipartisan bill that would change how the Environmental Protection Agency governs commercial chemicals is getting a lot of attention from Congress and those in the chemical enterprise. Introduced earlier this year, the measure (S. 1009) would modernize the Toxic Substances Control Act (TSCA), a law that has remained essentially unchanged since Congress passed it in 1976.
The bill would compel EPA to assess the safety of thousands of industrial chemicals—a responsibility the agency does not now have. The chemical industry, environmental and health advocates, and the Obama Administration all support the legislation’s call for safety assessments.
But as experts pore over the details of the 127-page bill, they are raising concern about certain provisions. The latest issue to emerge is one that they say could seriously cramp EPA’s ability to assess chemical safety—precisely the added responsibility that other parts of the bill put on the agency.
This issue revolves around complex details in S. 1009 that would require EPA to rely only on what the bill defines as “best available science” when it conducts chemical safety assessments. But the bill’s definition of this all-important phrase is open to widely divergent interpretations.
Those tracking the legislation closely say the wording could force EPA to disregard some health and safety data—specifically, toxicity information that the chemical industry generates for its products. In addition, unclear or ambiguous passages would create manifold opportunities for lawsuits that attack EPA’s safety assessments.
The provisions of S. 1009 related to this constitute “one of the less understood and least discussed aspects of the bill,” says Daniel Rosenberg, senior attorney for the Natural Resources Defense Council (NRDC), an environmental group. Lynn L. Bergeson, managing partner of Bergeson & Campbell, a Washington, D.C., law firm that works with chemical manufacturers and processors, says the intent of the measure’s drafters was to require high-quality data for chemical safety assessments.
Although TSCA is seen nearly universally as needing reform, its shortcomings “are generally not connected to EPA’s failure to make use of best available science,” says Wendy E. Wagner, a University of Texas, Austin, law professor. Given the focus in S. 1009 on best available science, “one would expect there would be a large literature documenting problems with EPA’s scientific analyses in implementing TSCA,” she notes. Instead, Wagner says, published analyses by the National Academies, congressional investigators, and academics conclude that the lack of basic toxicity information, not how it is used, is what hampers EPA’s current efforts to protect human health and the environment from the risks of commercial chemicals.
Yet S. 1009 “appears oblivious to the scarcity of toxicity and related information on most chemicals,” she continues. The bill defines best available science in part as science that “uses peer-reviewed and publicly available data.” If this language is enacted, it could force EPA to ignore industry-sponsored toxicity studies as it conducts chemical safety assessments, Wagner says. That’s because a great deal of health and safety data on commercial chemicals comes from testing sponsored by their manufacturers. This information is seldom published in peer-reviewed publications, she points out.
“The best available science requirements may filter out so much research that EPA is left empty-handed” when conducting chemical safety assessments, Wagner says. Moreover, companies that make what she calls “the most unsafe chemicals” could turn to these provisions to obstruct EPA from using the data they generate as the agency conducts safety assessments.
“Manufacturers who discover that their chemicals are unduly toxic, for example, could attempt to exclude these damaging studies by ensuring the research is not peer reviewed or publicly available,” Wagner says.
Bergeson agrees that the language of the Senate bill, as introduced, could preclude EPA from using industry-provided data in safety assessments. She contrasted S. 1009 to the federal pesticides law. Under the Federal Insecticide, Fungicide & Rodenticide Act, EPA relies primarily on information from companies as it decides whether to register pesticides. The federal pesticides law does not require peer review of manufacturer-supplied data, she notes.
In addition, the best available science language of S. 1009 diverges from existing federal requirements for information that agencies use to set policy and regulate, says Andrew A. Rosenberg, director of the Union of Concerned Scientists’ Center for Science & Democracy. The White House Office of Management & Budget issued those federal guidelines in 2002 under then-president George W. Bush. They are based on standards that Congress wrote into the 1996 Safe Drinking Water Act for science used as a basis for regulation.
Those guidelines require that agencies use “best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices.” But in addition, they allow agencies to use “data collected by accepted methods or best available methods (if the reliability of the method and the nature of the decision justifies use of the data).” Given these existing guidelines that apply broadly across the government, Andrew Rosenberg says he sees little reason for Congress to define a separate set of science standards that apply only to commercial chemicals.
What’s more, the best available science language in S. 1009 would create plenty of opportunities for lawsuits challenging EPA’s use of scientific data in safety assessments, Wagner says. These passages would impose many new requirements on the agency that can be interpreted more than one way, she says. That means those who disagree with how EPA construes those requirements—including companies that want to protect products deemed unsafe in assessments—could take the agency to court, Wagner says.
“It’s great for law firms,” Andrew Rosenberg says of the language, “but it does nothing for chemical safety.”
The main cosponsors of S. 1009, Sens. David Vitter (R-La.) and Tom Udall (D-N.M.), haven’t spoken publicly about the bill’s provisions on best available science or why they were included. The senators’ offices did not respond to requests for comment.
Bergeson expects lawmakers to revise this part of the legislation before it moves through the Senate. NRDC’s Daniel Rosenberg says that without such changes, environmental and public health advocates will not support passage of S. 1009. “There is a lot there that has to be fixed,” he says.
Vitter and Udall have said they are negotiating changes to the legislation. But they have not specified whether their talks are covering the bill’s language on best available science.