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First TSCA Reform Congressional Hearing of 2009 Held February 26

Beveridge & Diamond, P.C. - Client Alert, March 3, 2009

Executive Summary

This year’s Congressional debate on amending the Toxic Substances Control Act (TSCA) has begun.  On February 26, 2009, the Subcommittee on Commerce, Trade, and Consumer Protection of the House Energy and Commerce Committee held a hearing entitled “Revisiting the Toxic Substances Control Act of 1976.”  The hearing was characterized as the first of a series on the topic of TSCA reform.  While numerous critics presented reasons for amending TSCA, the most noteworthy aspect of the hearing was the willingness expressed by some petrochemical industry witnesses to support limited changes to TSCA.  A link to the witness statements appears at the end of this alert.

The overall tone was one of broad dissatisfaction with the law.  Subcommittee members and witnesses focused primarily on the procedural and evidentiary hurdles for the Environmental Protection Agency (EPA) to obtain test data from chemical companies under Section 4 or to regulate or ban chemicals under Section 6; assertions that EPA has regulated only a small number of chemicals under TSCA to date; the burden of proof on EPA to prove lack of safety rather than on chemical producers to prove safety; and the treatment of confidential business information (CBI).  Two recurring themes were that EPA was unable to ban asbestos under TSCA due to its evidentiary burdens, and whether the European Union’s REACH regulation (Registration, Evaluation, Authorization and Restriction of Chemical Substances) is an appropriate model for revising TSCA.

After multiple witnesses criticized TSCA and praised REACH, three industry witnesses defended the statute but agreed that it could be improved.  Representatives of the American Chemistry Council (ACC), the Synthetic Organic Chemical Manufacturers Association (SOCMA), and the National Petrochemical & Refiners Association (NPRA) agreed that TSCA should be “modernized,” “revisited,” or “updated” in limited ways.  All three industry witnesses opposed looking to REACH as a model.

Discussion

1.        Opening Statements by Subcommittee Members

The potential political fighting points emerged early in the hearing.  Subcommittee Chairman Bobby Rush (D-IL) opened the session with a statement that “by most accounts, TSCA is badly in need of reform [and] there is a broad consensus among a diversity of stakeholders that TSCA needs to be reexamined.”  Rep. Rush asserted that TSCA “has failed” to achieve its goals of providing adequate data and adequate regulatory tools, noting the procedural hurdles for data requests under Sections 4 and 5 and for regulation under Section 6.  He also asserted that TSCA reform would be a boon for business by restoring public faith in American products.  In contrast, Ranking Member George Radanovich (R-CA) advised “extreme caution” and the need for “precision” given TSCA’s sweeping authority and the possibility of unintended consequences, particularly those that could hurt small businesses.  He cited the recent Consumer Product Safety Improvement Act (CPSIA) and REACH as examples of the kind of economically harmful over-regulation that should be avoided.

Subsequent statements by members of the Subcommittee aligned fairly closely by party.  Democrats Schakowski (D-IL), Sarbanes (D-MD), Space (D-OH), and Braley (D-IA) emphasized the Section 6 burden of proof, the asserted lack of data on existing and new chemicals, the claimed public health risks from lack of regulation, and the fact that Title I of TSCA has not been significantly changed since 1976.  Committee Chairman Henry Waxman made a brief appearance to state his view that “For years, it has been clear that TSCA is not living up to its intent.”  Republicans Terry (R-NE), Murphy (R-PA), Gingrey (R-GA), and Stearns (R-FL), for their part, agreed with the need to review TSCA but urged greater precision and a “lighter touch” than was shown in CPSIA.

2.        Statements by Proponents of TSCA Reform

A total of ten witnesses testified, in two groups of five.  The entire first panel and two from the second panel either actively supported TSCA reform or were there to comment on how TSCA has failed to provide necessary information on chemical hazards or adequate protection from chemical exposure.  The final three witnesses were from the petrochemical industry.

The first set of witnesses, all proponents of sweeping TSCA reforms, included John Stephenson, Director of Natural Resources and the Environment at the Government Accountability Office (GAO); J. Clarence (Terry) Davies, a Senior Advisor to the Project on Emerging Nanotechnologies at the Woodrow Wilson International Center for Scholars and Senior Fellow at Resources for the Future and former EPA Assistant Administrator for Policy under George H.W. Bush; Maureen Swanson, Coordinator of the Learning Disabilities Association of America’s Healthy Children Project; Cecil Corbin-Mark, Deputy Director of the group WE ACT (West Harlem Environmental Action) For Environmental Justice; and Michael Wright, Director of Health and Safety for the United Steelworkers. 

Mr. Stephenson highlighted points made by GAO reports over the last few years, including that TSCA lacks robust procedures for reviewing existing chemicals, that EPA faces great challenges and expense in seeking test data, that toxicity data is rarely submitted for new chemicals, that the Section 6 “unreasonable risk” standard is burdensome, and that many CBI claims are unchallenged by EPA and hinder chemical management efforts by states. 

Mr. Davies first observed that discussion of TSCA reform was particularly timely in light of state initiatives and REACH.  He then noted a number of strengths of TSCA, including its flexibility and its cost-benefit framework.  In his view, the main problems with TSCA are the procedural “landmines,” including evidentiary standards that differ from those in all other environmental laws.  Mr. Davies also described what he called the “Catch-22” requirement that EPA must demonstrate that a chemical “may pose an unreasonable risk” in order to require development of data establishing risk.  He also criticized the apparent EPA assumption that no data means no risks.  Moreover, in light of his recent research, Mr. Davies emphasized that TSCA needs to consider nanotechnology and synthetic biology, which may require new approaches. 

Ms. Swanson painted a picture of increasing developmental and neurological disorders among children, due at least to some degree to chemical exposures.  She also expressed “outrage” on the part of many parents that chemicals in products are not tested prior to marketing and that many existing chemicals are known to be neurotoxins but are not regulated.  She specifically mentioned lead, phthalates, and bisphenol A, and requested that neurodevelopmental testing be required under a revised TSCA.  Ms. Swanson closed with a statement that the chemical industry was taking risks with children that parents would never knowingly take. 

Mr. Corbin-Mark offered personal anecdotes about chemical exposures in urban centers.  He stated that communities such as West Harlem bear a disproportionate burden of chemical exposures and related diseases, and that chemical regulation needs to better account for vulnerable populations. 

Mr. Wright, representing workers in chemical and other industries, expressed the sentiment that workers are essentially canaries in mines, facing the greatest exposures to unknown chemical risks; he characterized the current system as one of “counting bodies” rather than testing prior to exposure.  He advocated reduced trade secrecy protections, greater testing for chronic effects, and a more transparent reporting of hazards prior to risk management.  Finally, Mr. Wright stated that the economy could not afford not to reform TSCA, due to the lost productivity from chemical-related illnesses and the need to maintain consumer trust in order to preserve international competitiveness. 

During questioning, Rep. Rush asked all the witnesses in the first panel if TSCA should be amended, and all said yes.  Rep. Radanovich asked Mr. Stephenson if the chemical industry should prove all 80,000 listed chemicals to be safe.  Mr. Stephenson replied there was a need to segment and prioritize, as there was no one-size-fits-all analysis—which Mr. Stephenson recognized as a flaw in REACH.  Rep. Sarbanes said he was “dumbfounded” at the status quo and solicited explanations from Mr. Stephenson and Mr. Davies of the effects of the 1991 Fifth Circuit case invalidating EPA’s ban on asbestos, Corrosion Proof Fittings v. EPA.  Rep. Castor agreed that the evidentiary standard was problematic and inquired in more depth about the information-sharing provisions of TSCA.  Mr. Stephenson stated that “checking the box” for CBI was essentially the “default,” and Mr. Davies added that TSCA, unlike other statutes, lacked a provision for sharing CBI with other governments that had sufficient safeguards.  Mr. Wright cited the hazard communication standard of the Occupational Safety and Health Administration as a model for communicating information about chemicals, although he also noted that material safety data sheets often lack chronic hazard data due to insufficient testing. 

The second panel of witnesses included Richard Denison, Senior Scientist at Environmental Defense Fund; Kathy Gerwig, Vice President for Workplace Safety and Environmental Stewardship Officer at Kaiser Permanente; and the three petrochemical industry representatives.

Mr. Denison opened the second panel by describing how high-formaldehyde plywood from China, which is illegal in China as well as in Japan and the European Union, can nevertheless be sold legally in the United States, where it made its way into the FEMA trailers given to victims of Hurricane Katrina.  Overall, he said, TSCA’s lack of effective regulation perpetuates a variety of market failures.  Mr. Denison illustrated the high evidentiary burdens in the statute by describing EPA’s support for banning asbestos, rejected in the Corrosion Proof Fittings case, as a 45,000-page record and ten-year effort.  Mr. Denison also criticized voluntary programs as inadequate.  With respect to whether all chemicals on the TSCA Inventory must be tested, he endorsed the idea of prioritization and regulation based on specific uses, but felt that ultimately all chemicals would need testing. 

Ms. Gerwig described the efforts the Kaiser-Permanente Medical Program has taken to procure green products, stating that only an entity of its size could make those sorts of investments in investigating what chemicals are in the products it uses.  In her view, mechanisms are needed to allow downstream users to make informed choices regarding chemicals, because TSCA fails to provide this information adequately. 

3.        Statements by Petrochemical Industry Representatives

The three industry witnesses were Cal Dooley, President and CEO of ACC; V. M. (Jim) DeLisi, President of Fanwood Chemical and Chairman of the International Affairs Committee of SOCMA; and Charles T. Drevna, President of NPRA. 

Mr. Dooley’s testimony for ACC explained that “there are several reasons why Congress should begin the effort to modernize TSCA.”  Thus, ACC endorsed the idea of some legislative changes.  The reasons stated for needing to “modernize” TSCA included a loss of public confidence in the federal chemical management system and improvements in the science of testing chemicals and understanding their health and environmental effects.  He encouraged Congress to focus on establishing a process and criteria for EPA to use in prioritizing its actions regarding chemicals that warrant regulatory scrutiny.  He also called for Congress to ensure that “appropriate” information on chemical hazard, use, and exposure is available to all for making decisions about safe use.  He noted that what is “appropriate” for particular chemicals will differ depending on exposure potential.  He also advocated for regulatory decision making based on assessment of risk (i.e., including use and exposure information), rather than hazard alone.  Finally, he supported giving EPA authority to share CBI with other governments under appropriate safeguards.  He clearly stated that ACC “is NOT advocating the adoption of the European Union’s REACH system.”

Mr. DeLisi of SOCMA presented testimony with a theme of “enhancing” TSCA without a sweeping overhaul, noting that EPA should better implement existing authorities.  Mr. Drevna of NPRA focused on “updating” TSCA through appropriate modifications to allow it to meet what he characterized as its goals of creating a science-based risk management program while encouraging the development of useful products.  Such pragmatic modifications could include information sharing, chemical prioritization, collection of use data, and statutory recognition of EPA best practices, as well as fuller funding and better EPA implementation.  Mr. DeLisi and Mr. Drevna also both rejected REACH as a model, saying REACH remains untested.   Instead they discussed EPA’s ongoing prioritization and management efforts under the Chemical Assessment and Management Program (ChAMP), asking Congress to allow ChAMP to run its course before considering further changes. 

4.        Questions and Observations 

Following their testimony, Rep. Rush asked all members of the second panel whether they believed TSCA needed to be amended.  Mr. Denison said yes; Ms. Gerwig said Kaiser had not taken a position; Mr. Dooley said it needed to be “modernized”; and Mr. DeLisi and Mr. Drevna said that it should be amended only if it has been “revisited” and a need for amendment has been established.  Mr. Denison disputed Rep. Radanovich’s characterization of EPA’s case for banning asbestos as “shoddy” or overreaching and said that the Corrosion Proof Fittings case imposed an “impossible” evidentiary burden for EPA.  Rep. Schakowski and Mr. Denison discussed National Academies of Science reports that had, over time, found deficiencies in TSCA and in EPA’s risk assessments.  Mr. Dooley stated that REACH did not embrace prioritization to the degree needed and instead referred to the chemical regulation system under the Canadian Environmental Protection Act 1999 as a better approach.  Mr. Denison observed that, whether or not a good model, REACH has changed the dynamic.  Rep. Stearns and Mr. DeLisi discussed the diversion of European laboratory capacity from innovation and green chemistry to REACH testing.  Rep. Sutton drew a parallel to the recent trouble with peanut butter contamination and expressed concern that the United States was becoming a “dumping ground” for unsafe chemicals such as formaldehyde, then asked Mr. Denison whether companies such as those importing high-formaldehyde plywood would face any liability in the future.  Mr. Denison answered that while liability issues largely drove asbestos out of U.S. markets, the same is unlikely to happen to other chemicals with a more complex causal relationship to various diseases. 

Notably, the Kid-Safe Chemicals Act (KSCA), which Rep. Waxman co-sponsored in the House last year and which Senator Lautenberg is expected to reintroduce in the Senate this year, was not specifically mentioned at any point during the hearing.  Also absent was any indication of the timing of future actions regarding TSCA (either additional hearings or introduction of a bill).  Beveridge & Diamond is closely monitoring developments on these fronts. 

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For a printable PDF of this article, please click here.

For more information, please contact Mark Duvall at (202) 789-6090 (mduvall@bdlaw.com).  This alert was prepared with the assistance of Alexandra Wyatt. 

Key documents: 

  • The Committee staff made available at the hearing a press release from the Environmental Working Group, which has been heavily promoting KSCA, entitled “Weak Chemical Law Has Produced a Generation of Pre-Polluted Babies,” available at http://www.ewg.org/node/27663.