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November 29, 2013
TSCA reform - can differences be overcome?

Key stakeholders remain optimistic that the Chemical Safety Improvement Act (CSIA, S. 1009) is progressing toward congressional approval that will result in the universally recognized need for reform of the Toxic Substances Control Act (TSCA).  But major disagreements remain. 

The roadblocks toward passage were evident in the fourth hearing on the bill convened by the House Subcommittee on Environment and the Economy.  The Subcommittee Chairman, John Shimkus (R-IL), chose to emphasize the positive, stating that the CSIA had succeeded in bringing together a diverse set of supporters.  Shimkus still acknowledged the complexity of TSCA, calling it one of the “least understood federal environmental laws” and also one of the most important. 

“Writing legislation as complex and as important as modernizing TSCA is not easy,” said Shimkus.  “But implementing it may be even tougher.  Congress can give EPA both the authority and direction to carry out everything in a new TSCA, but we can’t just assume that the agency has the resources to accomplish all of it, nor that they’ll get it all done in a short period of time after enactment.”

Prioritize chemicals

The CSIA is the bipartisan handiwork of New Jersey’s late Democratic Senator Frank Lautenberg and Senate Republican David Vitter of Louisiana.  The bill would amend 23 of the 31 sections in TSCA.  Major changes would give the EPA the authority to prioritize chemicals in commerce for safety assessments, lower the hurdle the EPA must clear before regulating a chemical in commerce, and require that chemical companies substantiate claims that information submitted to the EPA is confidential business information and should be not be made available to the public.  Currently, the CSIA has 25 bipartisan cosponsors in the Senate.

Five focus areas

According to Richard Dennison, a scientist with the Environmental Defense Fund and a well-respected advocate for TSCA reform, the CSIA contains many positive elements but needs additional work in five areas.  In testimony, Cal Dooley, president of the American Chemistry Council and a strong CSIA proponent, responded specifically to those five concerns.  The following quotes are excerpted from their testimony.
Dennison:  The safety standard must ensure protection of vulnerable populations and require that the multiple sources of exposure to chemicals be taken into account.
Dooley:  CSIA makes clear that sensitive subpopulations must be considered in the safety assessment process and any intended use that would expose these groups would again be weighed during the final safety determination.
Dennison:  EPA’s authority to require testing when reviewing new chemicals and prioritizing data-poor chemicals needs to be restored.
Dooley:  The bill will make it easier for EPA to take action to manage chemical risks.
Dennison:  The bill’s sweeping pre-emption of state authority needs to be significantly narrowed.
Dooley:  The CSIA preserves the majority of state authorities and chemical laws, including California’s Proposition 65, and will have no effect whatsoever on state water or pollution programs.  But it also creates a more coherent, unified national approach to chemical regulation, which is desperately needed.
Dennison:  The bill’s lack of deadlines and its imposition of numerous overlapping procedural requirements, which would delay even the first safety decisions for many years, must be fixed.
Dooley:  Deadlines will exist, but they will be established by EPA based on the task at hand rather than arbitrarily prescribed in the legislation.
Dennison:  The bill’s undue limits on EPA’s ability to ensure that information submitted and claimed as confidential actually warrants protection from disclosure must be remedied.
Dooley:  Incentives for manufacturers to provide sufficient health and safety information are baked into the prioritization process.

Credibility in doubt

It may be concluded from these statements that different stakeholders are looking at the same provisions of the CSIA and drawing entirely different conclusions.  Those differences will very likely delay and possibly block final passage of the CSIA.  Dennison notes that the problems he sees in the CSIA are serious, but fixable.  Other critics are less sanguine.  For example, at the hearing, Andy Igrejas, speaking on behalf of Safer Chemical, Healthy Families, says that the CSIA “falls short of the critical elements needed for reform to be meaningful and credible.”

Testimony at the subcommittee hearing

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