Senate Subcommittee Holds Hearing on Assessing the Effectiveness of U.S. Chemical Safety Laws

On February 3, 2011, the Senate Committee on Environment and Public Works Subcommittee on Superfund, Toxics, and Environmental Health held a hearing entitled “Assessing the Effectiveness of U.S. Chemical Safety Laws.” Subcommittee Chair Frank Lautenberg (D-NJ) last year introduced the Safe Chemicals Act of 2010, a bill that would have reformed the Toxic Substances Control Act (TSCA) by shifting the burden of proof to industry to show chemicals are safe, rather than the U.S. Environmental Protection Agency (EPA) proving that they pose a risk. More information, including links to the written testimony of the witnesses, is available online.

Lautenberg began the hearing by summarizing the TSCA reform bill he introduced in the previous Congress, the Safe Chemicals Act.

Senator David Vitter (R-LA) reiterated a series of six principles for chemicals legislation: (1) EPA needs to update the TSCA Inventory, which currently lists more than 80,000 chemicals and of which Sen. Vitter believes only a quarter are actually in commerce; (2) a Registration, Evaluation, Authorization and Restriction of Chemicals (REACH)-style program would threaten to stifle new product innovation in the U.S.; (3) assuming REACH is the wave of the future is very premature and may not be a desirable model for any changes in the U.S.; (4) if EPA decides to use any given study to restrict or prohibit the use of a chemical, the study results need to be repeatable; (5) the peer review process needs to ensure that peer reviews are truly independent; and (6) if EPA is going to decide to use its resources to re-review a chemical, prior to the established schedule, then EPA’s decision needs to be based on sound science and not be driven by media coverage.

Witnesses included:

• The Honorable Steve Owens, Assistant Administrator, Office of Chemical Safety and Pollution Prevention (OCSPP), EPA;
• Ms. Kelly M. Semrau, Senior Vice President for Global Corporate Affairs, Communication, and Sustainability, S.C. Johnson & Son, Inc.;
• Mr. Steven J. Goldberg, Vice President and Associate General Counsel, BASF Corporation;
• Ms. Frances Beinecke, President, Natural Resources Defense Council (NRDC);
• Mr. Cal Dooley, President, American Chemistry Council (ACC); and
• Dean Lynn Goldman, MD, MPH, Dean, George Washington University School of Public Health and Health Services.

Owens summarized the Obama Administration’s principles for TSCA reform, which EPA Administrator Lisa Jackson first announced on September 29, 2009: (1) chemicals should be reviewed against safety standards that are based on sound science and reflect risk-based criteria protective of human health and the environment; (2) responsibility for providing adequate health and safety information should rest on industry, and EPA should have the tools necessary to require testing or obtain other information from manufacturers; (3) EPA should have clear authority to take risk management actions when chemicals do not meet the safety standard, with flexibility to take into account a range of considerations, including children’s health, economic costs, social benefits, and equity concerns; (4) EPA should have clear authority to set priorities for conducting safety reviews on existing chemicals based on relevant risk and exposure considerations; (5) innovation in green chemistry should be encouraged, and research, education, recognition, and other strategies that will lead to safer and more sustainable chemicals and processes should be supported; and (6) implementation of the law should be adequately and consistently funded. In response to questions, Owens stated that of the 84,000 chemicals on the TSCA Inventory, some 17,000 have identities that are confidential business information and that while there can be many reasons for this situation, such claims prevent access to understanding and should be limited.

Semrau testified that S.C. Johnson supports the modernization of TSCA, but stressed the need to protect product innovation. S.C. Johnson supports TSCA reform because its chemically-formulated products are in homes and on store shelves around the country. While the company evaluates all chemicals used in its products, Semrau acknowledged that data gaps exist and that TSCA modernization would provide the opportunity to examine where the data gaps occur and how they can be filled. The movement for chemical regulation at the state level, by various state agencies and legislatures, could lead to each state having different chemical management requirements. As a company that markets its products in all 50 states, S.C. Johnson is concerned about the prospect of chemicals being regulated on a state-by-state basis. Semrau noted that S.C. Johnson is a global company, and must comply with REACH, Canada’s Chemicals Management Program, and China’s recent revisions to its chemical management program. U.S. chemical regulation must keep pace with global developments for the U.S. to be a global leader in chemical regulatory policy.

Goldberg repeated the need for Congress to act on TSCA reform, so that chemicals are managed at a federal, rather than state, level. Goldberg noted that ACC, the Consumer Specialty Products Association, and the American Cleaning Institute have put forth principles for TSCA modernization, and that BASF supports these principles. Goldberg is familiar with principles developed by NRDC and the Environmental Defense Fund, as well, and summarized his review of the various positions by stating his opinion that more unites the regulated and non-governmental organization (NGO) communities than sets them apart. Goldberg also noted the need to learn from what works under TSCA as well as what works elsewhere in the world.

Beinecke expressed her appreciation for the Subcommittee holding a hearing on TSCA reform so early in the 112th Congress. According to Beinecke, states are adopting their own chemical regulations due to federal inaction. Beinecke testified that, in the last eight years, 18 states have adopted 71 measures concerning controls on the use of specific chemicals, classes of chemicals, or broader reform initiatives, and these measures received strong bi-partisan support from state legislatures and were signed into law by Democrat, Republican, and Independent governors. Beinecke noted that, just last month, legislators in more than 30 states introduced or announced plans to introduce chemical safety legislation this year. Outside of the U.S., and in addition to the European Union’s REACH Program, Japan, China, Canada, Taiwan, South Korea, and Israel are planning or already reforming their chemical management programs.

Dooley agreed on the need for TSCA modernization, urging Congress to act so that the U.S. can remain competitive globally, while also removing the motivation for states and cities to pass their own laws. He stated that ACC has been joined by a broad coalition of its value chain partners, including manufacturers and retailers, to call for “good TSCA modernization.” According to ACC, a modern TSCA should incorporate scientific objectivity, prioritize to identify data and information needs, and take actions using a risk-based safety standard that considers a chemical’s use.

Goldman, former Assistant Administrator for EPA’s Office of Prevention, Pesticides, and Toxic Substances (OPPTS, now OCSPP), described an American Bar Association Section of Environment, Energy, and Resources Special Committee on TSCA Reform paper, which she submitted to the record, that she prepared with a bi-partisan group of former EPA officials, including James V. Aidala, former Assistant Administrator for OPPTS, Charles M. Auer, former Director of EPA’s Office of Pollution Prevention and Toxics, and James B. Gulliford, former Assistant Administrator for OPPTS. The former EPA officials agreed on a number of points:

• We should take a very practical approach to the amendment of TSCA because the chemicals need flexibility and a prioritized system;
• EPA’s TSCA Program has limited organizational capacity and resources;
• All chemicals are not created equal, and TSCA reform should not result in a “numbers game,” where EPA runs through a certain number of chemicals each year, instead of first determining priorities among the chemicals in commerce and focusing regulatory attention accordingly;
• Much of the current chemical management system should be saved and strengthened;
• There are a number of international initiatives, aside from REACH, that should be incorporated; and
• Congress should not legislate how EPA should do the science, because science has a way of changing very quickly, while TSCA has a way of changing very slowly.

In response to a question from Senator Mike Johanns (R-NE) asking which parts of TSCA are working, Goldman identified the Inventory, new chemicals program, and significant new use rules (SNUR), while Dooley identified the Inventory and new chemicals, and Beinecke identified the Inventory.

Commentary

That Lautenberg convened a hearing so early in the new Congress indicates his intention to pursue TSCA legislation in the next two years, notwithstanding the change in partisan control of the House. At the same time, critics of the current law have increasingly cited, at today’s hearing and since the 2010 elections, that the lack of new federal legislation will only result in more initiatives at the state level. This is perhaps a thinly veiled threat by such groups that if Congress seems unlikely to move on TSCA reform, then their emphasis on prodding states to act separately will only increase.

A somewhat new element to the debate was some of the “principles” added to the mix by Vitter, mentioned earlier. Vitter is perceived as favorable to the chemical industry interests, and his remarks, especially about peer review and the need for critical studies to be “repeatable,” indicate a more detailed articulation of what “sound science” will be taken to mean at least by Republican members of the Environment Committee. The discussion of elements of TSCA that have worked was also new, and represented a change from prior Congressional hearings that seemingly held the view that everything was broken. One can only hope that the more measured views expressed by Goldman at the hearing (who is generally seen as supportive of environmental and public health NGO perspectives) and in the jointly authored paper on TSCA reform will gain traction and help to point in a direction that can lead to action in this divided Congress.