Bergeson & Campbell, P.C.
Commentary
Timely Information and Insightful Commentary on Chemical Law and Policy Matters
2012-C.9
Senate Holds Hearing on Oversight of EPA Authorities and Actions to Control Exposures to Toxic Chemicals

The Senate Committee on Environment and Public Works and Subcommittee on Superfund, Toxics, and Environmental Health held a joint hearing yesterday entitled "Oversight of EPA Authorities and Actions to Control Exposures to Toxic Chemicals." The hearing examined current initiatives related to flame retardant chemicals as a means of exploring the U.S. Environmental Protection Agency's (EPA) authority over chemical safety under the Toxic Substances Control Act (TSCA). During the July 24, 2012, hearing, the Senators focused on whether TSCA provided EPA the tools necessary to regulate chemicals posing a threat to human health, noting specifically concerns with certain flame retardant chemicals. The Senators also commented on Senator Frank Lautenberg's (D-NJ) Safe Chemicals Act of 2011 (S. 847), which the full Committee is scheduled to mark up on July 25, 2012. The witness statements and a webcast of the hearing are available online. A copy of the amendments is available online. A two-page summary of the proposed legislative changes is available online. The Safer Chemicals Health Families summary is available online.

Witnesses included:

In his testimony, Jones identified what EPA considers to be the major shortcomings of TSCA and outlined how the implementation of the Obama Administration's core principles for TSCA legislative reform, announced by EPA Administrator Lisa Jackson in September 2009, would strengthen TSCA and assist EPA in achieving its mission. The noted shortcomings of TSCA include how few of the 84,000 chemicals on the TSCA Inventory have been assessed for risks, the lack of a mandatory program where EPA must conduct a review to determine the safety of existing chemicals, the lack of efficiency of the current testing-through-rulemaking process, and the challenges associated with taking action under TSCA to limit or ban a chemical. Under the Administration's principles, EPA "should have the tools to quickly and efficiently obtain" information from manufacturers relevant to determining the safety of chemicals, as well as "clear authority to assess chemicals against a safety standard and to take risk management actions when chemicals do not meet the safety standard."

Pingree testified that the failure of TSCA to regulate chemicals effectively to ensure the safety of consumers has forced individual states to pass their own laws to protect public health. She outlined her own experiences as a former Representative of Maine in working to pass chemical safety laws and described some of the associated challenges. She concluded by urging the Committee to provide the leadership necessary to address this issue and to thus protect the nation's children.

Stapelton described her work researching the sources, fate, and effects of flame retardant chemicals in the environment, and outlined the major health risks associated with exposure to flame retardant chemicals. Stapleton testified that, according to research conducted by the Centers for Disease Control and Prevention, 99 percent of the U.S. population has flame retardant chemicals in their bodies, and that U.S. adults have body burdens that are an order of magnitude higher than levels in European and Asian countries.

Moore emphasized three key points in his testimony: (1) flame retardants are effective in reducing the flammability of synthetic materials; (2) EPA has conducted an extensive assessment of new flame retardant chemicals; and (3) Chemtura acts proactively to develop continually new products with improved environmental profiles, and is willing to cooperate with EPA in its assessment of both new and existing chemicals. He asserted that flame retardant chemicals have enabled manufacturers to meet the California standard set forth in TB 117, which is the most stringent fire safety standard in the U.S. He closed by stating that, while Chemtura believes that EPA's reviews of its products have been rigorous, it also believes in the modernization of TSCA and is committed to assisting in this effort.

Rawson discussed the strengths and weaknesses of TSCA Sections 4, 5, and 6, stating that, while all major stakeholders agree that reform is necessary, it is equally necessary to find a "common ground" and to ensure that the benefits justify the cost. He noted the importance of considering both the statute and the implementation of the statute in any conversation regarding the shortcomings of TSCA.

Stefani described trends in cancer rates in both active and retired firefighters, testifying that firefighters are at an increased risk due to exposure to flame retardant chemicals and other chemicals that may be released during combustion. According to Stefani, the nonprofit San Francisco Firefighters Cancer Prevention Foundation is preparing to conduct what he believes to be the first study on breast cancer in female firefighters. He stressed the importance of using chemical regulation to protect firefighters, who may be exposed to chemicals, including some flame retardant chemicals, even while their protective breathing apparatuses remain in place.

During the question and answer period, Senator Barbara Boxer (D-CA), Chair of the Committee, sought information regarding the health impacts of exposure to flame retardant chemicals and how TSCA reform would assist EPA in protecting the health of children. Both Senators James Inhofe (R-OK), Ranking Member of the Committee, and Michael Crapo (R-ID), Ranking Member of the Subcommittee, were interested to know whether EPA has adopted a formal position on Lautenberg's bill. Jones informed them that EPA has not yet taken a formal position on the bill, and he is not currently aware of any plan to take a position on the bill. Crapo questioned whether the real problem with TSCA with regard to flame retardant chemicals was merely the use of bad models, given that EPA had the statutory authority to keep the new flame retardant chemicals off the market in 1995, but the models failed to identify the persistence and bioaccumulation characteristics of the chemicals. Jones responded that it could be seen as a problem with the overall structure of the program. Lautenberg asked whether EPA's limited authority under TSCA prevented EPA from providing the amount of protection that Americans desire; Jones responded that the demonstration of the safety of products by product manufacturers would increase the public's confidence in those products. Lautenberg also questioned whether individual states believe they are compelled to enact state-specific legislation; Pingree responded that states have taken up the issue due to a perceived failure at the federal level to address public health concerns. According to Pingree, states will likely continue to act until they are confident that public health is protected. Boxer concluded the hearing by asking the panelists whether they agreed that chemical manufacturers should be required to prove, through unbiased studies, that their products are safe for pregnant women, children, and infants before they can sell their products in the U.S.

In their opening statements, Republicans criticized the scheduled markup of the Safe Chemicals Act. Inhofe, Crapo, and Senators David Vitter (R-LA) and Lamar Alexander (R-TN) sent a letter dated July 23, 2012, to Lautenberg stating they were "deeply troubled that you are pursuing a markup of a modestly revised Safe Chemicals Act this week." The letter states that the Republicans approached Lautenberg about entering into bipartisan negotiations to create a "fresh legislation proposal" to reform TSCA. According to the letter, Lautenberg agreed to begin "with a 'blank sheet' in the interest of bipartisan cooperation and success." The Senators agreed that a mutual goal was to achieve a draft bill "as early as this September." With the scheduled markup of a "modestly revised" Safe Chemicals Act, the Republicans "can only conclude that [Lautenberg is] no longer interested in working in a bipartisan manner to develop successful legislation, and we are concerned that this week's markup is counterproductive to long-term efforts of advance meaningful reform." The American Alliance for Innovation, a coalition of more than 40 trade associations representing chemical manufacturers, formulators, and companies that purchase chemicals to make goods, sent a July 23, 2012, letter to Boxer and Lautenberg expressing similar frustration. According to informed sources, the markup scheduled for today will be partisan with no Republicans scheduled to participate.

Observations

Regardless of any markup, especially one lacking bipartisan Members, the prospects for any legislation this election year are dim. The Republicans' objections and complaints about the Democrats' decision to proceed without a consensus being reached indicates that even the appearance of a bipartisan approach to TSCA amendments is lacking. Regardless of the election outcome, these latest developments do not bode well for the chances of successful legislation even in the next sessions of Congress.

Also, the lack of a clear Administration position, notwithstanding the equivocal but supportive responses of EPA Acting Assistant Administrator Jones, continues to leave the Lautenberg drafts as a lonely marker viewed more of a starting point than a coherent and workable approach to how a revitalized TSCA statute might fashion a consensus to address the numerous difficult issues which has bedeviled past efforts. It has now been years since the various parties first announced that there was broad agreement on the principles of reform and then set out to sort out the details. It is not clear how many more years such efforts may take before any new legislation is enacted.

 

 
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