Regulatory Developments

Senate Committee and Subcommittee Hold Hearing on TSCA Reform Legislation

November 17, 2011 PRINT

On November 17, 2011, the Senate Environment and Public Works Committee and the Committee's Superfund, Toxics, and Environmental Health Subcommittee held a hearing on legislation intended to reform the Toxic Substances Control Act (TSCA), the Safe Chemicals Act of 2011 (S. 847). Senator Frank Lautenberg (D-NJ), who introduced the legislation on April 14, 2011, and is Chair of the Subcommittee, chaired the hearing. The Safe Chemicals Act is intended to modernize TSCA to require chemical companies to demonstrate the safety of industrial chemicals and the U.S. Environmental Protection Agency (EPA) to evaluate safety based on the best available science. More information is available in our April 18, 2011, memorandum online.

Lautenberg opened the hearing, describing the legislative process and stakeholder input to date. According to Lautenberg, the legislation has evolved to reflect scientific advances, and mandates that EPA use the best science available as defined by the National Academy of Sciences (NAS). Lautenberg stated that the bill should be considered an invitation, and colleagues and stakeholders are welcome to offer suggestions. Lautenberg intends to call for a Committee vote in the near future.

Since Lautenberg introduced the legislation in April, staff from his office and the office of Senator James Inhofe (R-OK), Ranking Member of the Senate Environment and Public Works Committee, co-hosted a number of meetings with chemical trade associations and industry, as well as separate meetings with environmental organizations. The first meeting, held on June 21, 2011, focused on chemical safety standards. Other meeting topics included data requirements and prioritization approaches. Inhofe stated that he thought the meetings were very thoughtful and identified areas of common ground that warrant further discussion. Inhofe noted that, although the bill does not reflect what was learned during the meetings, it offers a good starting point for discussion. Inhofe believes that care must be taken to ensure that TSCA modernization does not unfairly impact small- and medium-sized businesses.

Witnesses at the hearing included:

  • Mr. Ted Sturdevant, Director, Washington Department of Ecology (WDE);
     
  • Ms. Charlotte Brody, Director of Chemicals, Public Health and Green Chemistry, BlueGreen Alliance;
     
  • Mr. Cal Dooley, President and Chief Executive Officer, American Chemistry Council (ACC);
     
  • Mr. Robert Matthews, McKenna Long & Aldridge, on behalf of the Consumer Specialty Products Association (CSPA); and
     
  • Dr. Richard Denison, Ph.D., Senior Scientist, Environmental Defense Fund (EDF).

Majority, minority, and witness statements and a webcast of the hearing are available online.

Sturdevant testified that more states, including WDE, are beginning to regulate chemicals at the state level due to the perceived shortcomings of TSCA. According to Sturdevant, in the last eight years, 18 states passed chemical legislation. Sturdevant would rather EPA have the tools it needs to regulate chemicals at the national level, however. Although there are a number of state-specific chemical control laws, Sturdevant believes that a preemption of states' authority is unnecessary, however. Sturdevant stated that states stepped in when TSCA failed, and noted that even if TSCA reform legislation is passed, states should retain their authority to address unanticipated challenges in the future. Sturdevant stated further that he believes state preemption is unnecessary, and that if there were an effective federal system in place, states would spend their resources elsewhere.

Brody testified that the Safe Chemicals Act would modernize TSCA to reflect what has been learned about chemicals and human health since the 1970s. Brody supports the bill's safety standard of reasonable certainty of no harm from aggregate exposure, as well as the identification of workers as part of the vulnerable populations protected under that standard. According to Brody, the prioritization system and tiered use of data are an effective way of addressing "decades" of unregulated chemicals.

Dooley's written testimony, while concise at two pages with ten pages of attachments that included ACC's "10 Principles for Modernizing TSCA" and its recent prioritization proposal to EPA, asserted that the approach in this bill remains very similar to that in the 2010 legislative proposal, which ACC considered "unworkable." He went on to describe briefly "fundamental flaws" in the Safe Chemicals Act, including the safety standard of reasonable certainty of no harm from aggregate exposures, which would be "virtually impossible to meet"; significant new data requirements for new chemicals; requirement of a minimum data set for all chemicals; and the prioritization proposal that "makes no mention of integrating current knowledge about hazard, use, and exposure."

Matthews testified that TSCA reform is necessary to stop the erosion of public confidence in chemical safety. TSCA reform would allow the federal government to reestablish its authority and ensure consistent regulation of chemicals, rather than letting states adopt their own regulations. According to Matthews, TSCA reform would also allow the U.S. to establish global leadership for a risk-based approach to chemical review and assessment. CSPA acknowledges that EPA needs certain use information to make well informed screening-level prioritizations, and has very specific proposals concerning how to provide EPA the information it needs while also protecting confidential business information (CBI).

Denison described efforts EDF has made to work with industry stakeholders on TSCA reform. According to Denison, EDF and CSPA are near an agreement on recommendations to address two key needs in TSCA reform: balancing public access to chemical information with the need to protect legitimate CBI; and designing a system that would provide EPA with more robust data on how chemicals are used for purposes of both prioritizing and assessing the safety of chemicals. Denison noted that while other countries require a minimum set of safety information for new chemicals, the U.S. does not. The Safe Chemicals Act would create tiered data requirements, which would provide EPA the information it needs to make a decision regarding the safety of a chemical. Denison testified that the bill would provide EPA the ability to look at the safety of existing chemicals, and this is consistent with how other countries, such as Canada, have approached chemical regulation.

Several Democratic Senators later asked that ACC provide more than criticism of the bill, including requests for a redline markup of the bill, offering specific legislative language to address concerns. Dooley offered to provide "suggestions" but stopped short of offering legislative language. Senator Crapo (R-ID) noted that a request for legislative language was "unusual" and that it would be wrong to say that a failure to meet such a request indicated a lack of good faith. Lautenberg closed the discussion by reiterating that ACC has offered criticisms but not alternatives, and that if ACC does not like the bill, ACC should provide written evaluations of the issues and its concerns.

Senator Carper (D-DE) asked each witness to indicate the single biggest issue to overcome in the bill. Dooley, Sturdevant, and Brody identified the safety standard; Matthews identified information gathering, CBI, and new chemicals; and Denison identified issues relating to incorporating the NAS recommendations on new scientific understandings such as aggregate exposure.

In another exchange, after Dooley complained that the Safe Chemicals Act did little to fix issues that had been identified by ACC, Lautenberg noted that industry did not have the votes to effect such changes. While an accurate statement, it was somewhat jarring and at odds with discussion in his opening statement about developing a bipartisan bill. At another point, Senator Whitehouse (D-RI) expressed interest in the possibility of marking up the bill.

In response to questions, Dooley noted that regulating chemicals under TSCA is different than regulating pesticides. While a "risk cup" approach may work with pesticides, where exposure pathways can be defined, industrial chemicals such as chlorine are used in hundreds of products and cannot be regulated the same way.

In response to questions regarding the European Union's (EU) Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) program, Brody testified that American manufacturers are spending money to meet REACH data requirements, and the U.S. should find a way to use that information. Denison stated that Congress should ensure that, rather than requiring duplicate testing, EPA has the authority to obtain information provided under REACH and that the data are used to meet industry's minimum data requirements. Industry would then need to fill only the gaps remaining.

Observations

The tone of the hearing was a bit more heated and had more of an admonishing tone towards the positions of the chemical industry. While all Committee members continued to applaud and exhort the attempt at continued discussion and negotiation between the NGO advocates and industry, some Democratic Senators, especially Senator Cardin (D-MD), were especially critical of ACC and the lack of a concrete alternative proposal developed and supported by the chemical industry. Lautenberg also indicated that he intends to bring his legislation up for a Committee vote in the near future and would hope that consensus can be reached -- with the implication that he will attempt to report his bill even if the industry has not agreed with all of the provisions in any pending legislation.

The prospects of legislation actually becoming law are still remote, given that any successful bill would essentially need consensus in the full Senate -- and still overcome the lack of any movement in House. At the same time, the tenor of the hearing exhibited a bit more frustration on the part of Committee Democrats with the lack of specific alternative language from the industry, language which would illustrate their idea of how to capture the much-discussed "Principles of Reform" that have been discussed for more than two years. Whether this somewhat more caustic rhetoric on the part of some Committee members helps or hurts the chances of any eventual legislation is not clear, but it may signal that during the coming election year the issue of chemical testing and regulation may become a more visible, or at least more vocal, issue.


 
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