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July 30, 2010

Subcommittee on Commerce, Trade, and Consumer Protection Convenes a Legislative Hearing on TCSA

Bergeson & Campbell, P.C.

On Thursday, July 29, 2010, at 10:00 a.m. (EDT), the Subcommittee on Commerce, Trade, and Consumer Protection held a legislative hearing on H.R. 5820, the Toxic Chemicals Safety Act of 2010 (TCSA). Witnesses at the hearing were (in order of testimony):

  • Steve Owens, Assistant Administrator, Office of Chemical Safety and Pollution Prevention, U.S. Environmental Protection Agency (EPA);
  • Richard Denison, Ph.D., Senior Scientist, Environmental Defense Fund;
  • Calvin M. Dooley, President and Chief Executive Officer, American Chemistry Council (ACC);
  • Ken Cook, President, Environmental Working Group;
  • Howard Williams, Vice President, Construction Specialties, Inc.;
  • Mark Mitchell, M.D., M.P.H., President, Connecticut Coalition for Environmental Justice; and
  • Beth Bosley, Society of Chemical Manufacturers and Affiliates, Inc.

Subcommittee Chairman Bobby Rush (D-IL) provided opening remarks. He referred to the stakeholder discussion that was conducted prior to the bill being introduced on July 22, 2010. He acknowledged that the bill was not something that all sides would love, but hopefully would be something all could live with. Ranking Minority member Whitfield (R-KY) commented on concerns related to adverse impact of the proposed legislation on jobs in America. Other Subcommittee members provided comments, including Waxman (D-CA), Pitts (R-PA), Pallone (D-NJ), Latta (R-OH), Dingell (D-MI), Barton (R-TX), Green (D-TX), Gingrey (R-GA), DeGette (D-CO), Scalise (R-LA), Castor (D-FL), Murphy (R-PA), Schakowsky (D-IL), Space (D-OH), Sutton (D-OH), and Sarbanes (D-MD).

Most of the Subcommittee questions to the witnesses related to whether the proposed legislation would spur or hinder innovation and job creation in the U.S. and what the true impact to U.S. employment might be.

In response to comments from industry representatives, Denison noted that chemical manufacturers or processors would not be obliged to conduct aggregate exposure assessments as part of their safety determination obligations, but would only have to review exposures related to their intended uses. Dooley responded the legislation clearly states that the manufacturers and processors of a chemical substance bear the burden of proving the chemical substance meets the safety standard; the standard is defined as a standard that takes into account aggregate exposure to a chemical substance. When asked by a Subcommittee member (DeGette) as to the intention of the legislation regarding aggregate exposure, Owens noted that EPA did not draft the legislation, was not sure what the intention was, and was still interpreting it. As the exchange continued, DeGette indicated that it was not the intention to require that companies consider all uses and exposures and indicated openness to working with ACC to clarify the intent. In a separate line of questioning, Owens also noted that EPA’s ability to carry out the actions outlined in the legislation within the timeframes listed would depend on the additional resources made available.

In response to a question regarding what safety standard should be used, Dooley and Bosley offered the Canadian Chemical Management System as a workable scheme for safety determinations. Denison noted that the U.S. issues are bigger and more complex than Canada’s and as such, a more systematic method is needed.

In response to a question regarding potential impact to chemical distributors that engage in formulation or chemical mixtures, Owens noted that EPA is still in the process of reviewing the legislation but agreed that one industry sector should not be more burdened than another. Bosley noted that with recent text changes in the bill (issued on July 22, 2010, and which removed the requirement for mixtures to be notified as new chemicals), it was unclear how mixtures will be covered in the bill, which makes it difficult to testify as to how processors might be impacted.

Near the close of the hearing, Ranking Minority member Whitfield noted that agreement had been reached to keep the hearing record open to accept additional written testimony from Charles Auer (who is currently affiliated with Bergeson & Campbell, P.C.) and Chairman Rush agreed. Chairman Rush also reported that numerous written submissions had been received from other organizations, including National Petrochemical and Refiners Association, CropLife America, and People for the Ethical Treatment of Animals, among others.