On Thursday, February 3, 2010, the Senate Committee on Environment and Public Works, Subcommittee on Superfund, Toxics, and Environmental Health held a hearing titled “Assessing the Effectiveness of U.S. Chemical Safety Laws.” Although the hearing’s title suggests that a broader discussion of US chemical control laws occurred, reforming the federal TSCA statute was the primary focus. Representatives from industry, academia, the environmental community, and EPA testified on two different panels, and all witnesses supported TSCA reform. The level of interest in the hearing seems to have surprised Subcommittee staff – the chamber was completely full, and with no room made available for overflow, the hall outside remained crowded for nearly the entire hearing.
Readers will recall that the Subcommittee Chair, Senator Frank Lautenberg (D-NJ), introduced a bill last year – the “Safe Chemicals Act of 2010” – that would have substantially revised TSCA. Thursday’s hearing undoubtedly served to demonstrate the importance that Senator Lautenberg places on revising TSCA and his commitment to maintaining active debate on the topic. Whether his commitment will enable the parties in both houses to reach consensus and pass legislation in 2011, or even 2012, remains to be seen. There are plenty of reasons for skepticism; however, passage of a revised TSCA is likely to occur in the next few years.
Senator Lautenberg began the hearing with a review of the testimony the Subcommittee received during the 111th Congress. Other Subcommittee members, including Senator James Inhofe (R-Okla.) and Senator David Vitter (R-LA) also provided statements.
In his statement, Senator Inhofe expressed hope that the parties could “reach an agreement to develop a workable bill, one based on the best available science, one that protects human health, and one that balances the need to protect jobs and economic growth.” Senator Inhofe alluded to concerns in the House of Representatives about the potential impact on jobs and innovation that might result from a revised TSCA statute, concerns that could very well make passage of a revised statute difficult while fears of a double-dip recession still linger. He also stated that modernization of TSCA should (1) be based on the best available science, (2) use a risk-based standard for chemical reviews, (3) include more rigorous cost-benefit requirements, (4) protect proprietary information, (5) reduce the likelihood of litigation, (6) avoid compelling product substitution, and (7) prioritize reviews for existing chemicals.
Senator Vitter offered six broad principles for the upcoming debate: (1) the need for EPA to update the TSCA Inventory to remove those chemicals which are no longer in commerce, which he estimated to be nearly three-quarters of the approximately 80,000 currently listed, (2) the unacceptability of adopting a program modeled after the European Union’s Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) regulation since it would threaten innovation and US competitiveness, (3) the mistake of prematurely assuming REACH will become the global standard for chemicals regulation, (4) the need for any scientific studies to be repeatable when used by EPA to restrict or prohibit use of a chemical, (5) the need for peer review processes to be truly independent; and (6) the need for sound science, and not media attention, to provide the basis for any EPA decision to re-review a chemical prior to an established schedule.
A total of six witnesses testified on the two panels, with EPA testifying exclusively on the first. Again, all witnesses supported reforming or “modernizing” the TSCA statute. They 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
- Dr. Lynn Goldman, MD, MPH, Dean, George Washington University School of Public Health and Health Services.
Mr. Owens summarized the Obama Administration’s principles for TSCA reform, first articulated in 2009. In response to questions, Mr. Owens also expressed concern about the potential over-use of claims of confidentiality – i.e., confidential business information (CBI) – to protect the identity of chemicals listed on the TSCA Inventory. According to Mr. Owens, approximately 17,ooo of the 84,000 listed chemicals have their identities claimed as CBI, affecting the ability to study and understand their potential effects.
Ms. Semrau testified that S.C. Johnson supports the modernization of TSCA, but stressed the need to protect product innovation. She observed that although S.C. Johnson evaluates all chemicals used in its products, data gaps remain and revising TSCA would provide an opportunity to examine where data gaps occur and how they could be filled. She also expressed the company’s concern about chemicals being regulated on a state-by-state basis, noting the potential for the states to adopt different, and potentially conflicting, chemical management requirements.
Mr. Goldberg emphasized the need for Congress to act, so that chemicals are managed at the federal level rather than on a state-by-state basis. He noted that American Chemistry Council, the Consumer Specialty Products Association, and the American Cleaning Institute have circulated principles for TSCA modernization, which BASF supports. Interestingly, he also stated that he believed, after reviewing the principles articulated by the various stakeholders, that industry and the environmental community had more in common than is often assumed.
Ms. Beinecke expressed appreciation for the Subcommittee’s decision to convene a hearing on TSCA reform early in the 112th Congress. She, like the other witnesses, noted that the states are adopting their own chemical regulations due to federal inaction. She observed that, in the last eight years, 18 states have adopted 71 measures concerning controls on the use of specific chemicals or classes of chemicals, and that some have adopted broader reform initiatives, most of which received strong bipartisan support. She also noted that legislators in more than 30 states introduced or announced plans to introduce chemical control legislation this year, and that various industrialized countries around the globe are also undertaking efforts to reform or adopt chemical management programs.
Mr. Dooley agreed on the need for TSCA modernization. He urged Congressional action so that the U.S. would remain competitive globally, seemingly anticipating objections that may come from some in the House of Representatives. He also urged action to discourage states from passing their own laws. Mr. Dooley stated that ACC and a broad coalition of its “value chain partners” are calling for “good TSCA modernization.” According to Mr. Dooley, a revised TSCA should require scientific objectivity, prioritize to identify data needs, and use a risk-based safety standard that considers a chemical’s use when taking regulatory actions.
Dr. Goldman, a former Assistant Administrator for EPA’s Office of Prevention, Pesticides, and Toxic Substances (OPPTS) — currently called the Office of Chemical Safety and Pollution Prevention — reviewed a paper recently prepared by an American Bar Association Section of Environment, Energy, and Resources Special Committee on TSCA Reform. The Special Committee includes a bipartisan group of former EPA officials. According to Dr. Goldman, the officials agreed on several points, including: (1) the necessity of a practical approach to amending TSCA because of the need for a flexible and a prioritized system to regulate chemicals, (2) the limited organizational capacity and resources currently available to EPA’s TSCA program, (3) the understanding that all chemicals are not created equal and therefore TSCA modernization should not become a “numbers game” where EPA is required to review a certain number of chemicals each year instead of first determining priorities for regulatory attention, (4) the need to preserve, but strengthen, much of the current chemical management system, (5) the availability and usefulness of other regulatory systems, in addition to REACH, that should be evaluated and potentially have elements incorporated into a revised TSCA, and (6) the need for Congress not to legislate how EPA should do the science since it can evolve quickly.
Whether Senator Lautenberg’s enthusiasm for reform will enable him to achieve a bipartisan and bicameral consensus remains to be seen. Certainly, the calls for reforming TSCA are increasing among the various stakeholders. However, as noted elsewhere, economic considerations are certain to affect the extent of any near-term progress. Those considerations will influence not only the Congressional resources devoted to TSCA reform, but also the details of any legislative proposals.