US EPA says TSCA bill not in line with its reform principles

Industry, NGO positions remain unchanged

30 April 2014 / United States

The revised draft of a US House Toxic Substances Control Act (TSCA) reform bill (CW 23 April 2014) does not align with the EPA’s stated principles for TSCA reform in several areas, and in some ways also weakens existing law, a top agency official has told Congress.

The agency’s principles (CW 30 September 2009) state that priority chemicals should be “assessed and acted upon in a timely manner, with clear enforceable and practicable deadlines”, said Jim Jones, EPA assistant administrator, at a hearing held by the House Subcommittee on Environment and the Economy. But the revised draft of the Chemicals in Commerce Act (CICA) does not include a “mechanism that would provide for the timely review of existing chemicals that may pose a concern”, he said. Mr Jones did agree with Subcommittee Chairman, John Shimkus (Republican-Illinois), the bill’s author, that there were positive elements in the new draft.

Other big problems with the CICA are the measure’s safety standard and its new chemicals provisions, he said. The bill’s “unreasonable risk” standard does not line up with the agency’s principle that “when addressing chemicals that do not meet the safety standard, risk management decisions should take into account cost and availability of substitutes, as well as sensitive subpopulations and other factors.” The CICA takes a “risk/cost balancing” approach which is the standard under the current TSCA, he said.

The new chemicals provisions in the draft bill would not require that the “EPA conclude that new chemicals are safe and do not endanger public health or the environment”, which he said is a “keystone of a credible chemical safety programme”. In contrast, existing TSCA language allows the agency “more flexibility to prevent a chemical in getting on the market”, he added.

On the CICA’s confidential business information provisions, Mr Jones agreed with a lawmaker that they would overturn the agency’s 2010 policy to in general deny confidentiality claims for chemicals in health and safety studies.

He also concurred with a congressman that the CICA’s preemption language is “very broad”, and could jeopardise state laws requiring oil and gas companies to disclose the chemicals they use in hydraulic fracturing operations.

Testimony from industry and NGOs followed familiar lines; industry supporting the revisions, while environmentalists and state interests said the measure fell short, despite the changes.

Cal Dooley, president of the American Chemistry Council, pointed out that the new draft, among other things, expands the EPA’s authority to require industry to provide more information and/or conduct more health and safety testing when it is needed. It also explicitly provides that the EPA base risk evaluations solely on health and environment considerations and not economic costs or benefits. “Congress has before it a historic opportunity to achieve balanced, comprehensive legislation that will update TSCA for the first time since the law was enacted nearly forty years ago,” he said.

But Andy Igrejas, director of Safer Chemicals, Healthy Families, said the “rollback of existing federal authorities … combined with the rollback of state authorities, outweigh the limited improvements” made. Among his concerns are that the EPA will still be unable to impose risk management measures, and its authority over new chemicals will be reduced. “States' rights to implement their own protections are unduly violated,” he said.

Massachusetts State Senator, Michael Moore, testifying on behalf of the National Conference of State Legislatures, said the CICA has “onerous preemption language that would handcuff states from acting against harmful chemicals to protect their population”. It would “essentially eliminate” the ability of state policymakers to regulate toxic chemicals by “divesting all authority away from states and localities” and placing it with the US EPA.

However, Steven Goldberg, vice president of BASF, told the committee that his company “supports the approach of the CICA towards reaching bipartisan solutions for the critical issues required to make a modernised TSCA a success”. The measure meets key principles for updating TSCA, he added.

Dinesh Kumar