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Senate Oversight Hearing on TSCA Highlights Familiar Concerns, New Science

Beveridge & Diamond, P.C., December 4, 2009

After two subcommittee hearings on legislative reform of the Toxic Substances Control Act (“TSCA”) in the U.S. House of Representatives this year,[1] the Senate has now gotten in on the action as well.  On December 2, 2009, the Senate Environment and Public Works Committee and its Subcommittee on Superfund, Toxics and Environmental Health held a joint hearing entitled “Oversight Hearing on the Federal Toxic Substances Control Act.”[2]  While no legislation to modernize TSCA has been introduced in either the House or the Senate, the latest hearing gave federal legislators and policymakers, non-governmental organizations, and industry groups an opportunity to showcase their priorities.  

The Subcommittee Chairman, Senator Lautenberg (D-NJ), declared his intention to introduce TSCA legislation “in coming weeks,” and Committee Chairman Senator Boxer (D-CA) stated that chemicals management reform was now “at the top” of her legislative agenda.  Those statements suggest that no bill is likely for the rest of 2009, but could come early in 2010.

The hearing appeared to be principally an effort to keep TSCA legislation in the public view while waiting for introduction of a revamped Kid-Safe Chemicals Act.

Chairman Lautenberg and other Democratic Senators offered many of the same justifications for TSCA reform heard at the two earlier House hearings.  Most often repeated was that out of the more than 80,000 chemicals listed on the TSCA inventory, EPA has required testing of only about 200 and has banned only 5.  Lautenberg also tied chemicals management to both health care reform and the economy, pointing to biomonitoring studies and saying that restricting exposures to hazardous chemicals would reduce health care costs.

Biomonitoring has emerged as a major theme of the TSCA debates of 2009, and this Senate hearing was no exception.  Senator Lautenberg put into the record a study released that day by the Environmental Working Group finding 232 chemicals in the cord blood of ten newborns, indicating prenatal exposure.  The report highlights bisphenol A, brominated flame retardants, and perfluorinated chemicals, among others.[3]

Senators from both parties asserted needs to better protect children and other sensitive populations; provide more information for the public and intermediate chemical users; protect the valuable innovations of the chemical industry which support the American economy and quality of life; and avoid piecemeal chemical-specific or state-by-state regulations.  The advocates of chemicals management reform mentioned formaldehyde in pressed wood products, bisphenol A, and brominated flame retardants as examples of specific chemicals in need of regulation.[4]

The Republican Senators at the hearing displayed little interest in advancing the discussion on TSCA reform and instead focused almost exclusively on disputing the science behind EPA’s climate change conclusions in light of e-mails hacked from British climate researchers.  However, Ranking Member Inhofe (R-OK) reiterated his previously expressed position that any bill introduced be based on risk and cost-benefit analysis considerations and not the precautionary principle; use sound science; protect confidential business information and security-relevant information; include procedures for prioritization; and disallow citizen suits.[5]

The first witness was EPA Administrator Lisa Jackson.  Her testimony followed closely on the testimony at the last House hearing from Stephen Owens, EPA Assistant Administrator for Prevention, Pesticides and Toxic Substances.   She described limitations of TSCA, highlighted EPA’s six legislative principles for TSCA reform,[6] and described EPA’s actions in the meantime under current TSCA authority.[7]  In response to a question from Senator Whitehouse (D-RI) regarding the tension between acting on sufficient science and avoiding delay, Jackson emphasized the need for legislation to include rigorous but flexible provisions for prioritization and efficiency.  Administrator Jackson also noted in response to a question from Senator Klobuchar (D-MN) that EPA is pursuing regulation of formaldehyde in pressed wood products, but the risk assessment is not due for nearly a year.

The hearing’s other witnesses, for whom the only Senator Lautenberg was in attendance, were John Stephenson, Director of Natural Resources and the Environment at the Government Accountability Office (“GAO”), and Dr. Linda Birnbaum, Director of the National Institute of Environmental Health Sciences (“NIEHS”) and the National Toxicology Program (“NTP”).  Mr. Stephenson largely recapitulated his testimony at the February House hearing on TSCA.  GAO has issued more than a dozen reports describing flaws in TSCA, and in January 2009 added TSCA to its “High Risk Series” list of government programs “warranting attention by Congress.”  Stephenson expressed support for risk-based chemical prioritization, following a “vetting” of the TSCA Inventory to determine which chemicals are still in commerce.

Dr. Birnbaum testified regarding the advancement of science since the 1976 passage of TSCA.  The new science of epigenetics (which refers to all modifications to genes other than changes in the DNA sequence itself), for example, has shown that during particularly susceptible stages of human development, relatively low doses of certain chemicals can disrupt normal development and also induce changes in gene expression that can affect several generations.  In this vein, NIEHS is investigating potential impacts of environmental exposures to chemicals on new endpoints such as breast cancer and obesity.

Dr. Birnbaum also testified that a modernized TSCA needs to account for an ongoing shift toward new methods of toxicological testing such as high-throughput assays and alternatives to animal testing.[8]  In response to a question from Senator Lautenberg regarding potential fast-track regulation of existing persistent, bioaccumulative, and toxic chemicals (“PBTs”), she also said that any chemicals that are highly persistent and bioaccumulative are likely to be toxic, and should be treated as such even where toxicity information is lacking.

While all three panelists represented government agencies, non-governmental organizations and industry sector voices did not go unheard.  Democratic Senators referenced and added to the record a number reports and statements from stakeholders relating to TSCA modernization.  Two  such reports were released on the day of the Senate hearing.  First, as noted above, the Environmental Working Group issued a report on chemicals found in cord blood.  Second, officials from thirteen states released a set of TSCA reform principles.[9]  Among other things, these principles called for preserving states’ rights to address chemicals of concern themselves (a reference to preemption), and for funding state chemicals programs.

The NGO coalition Safer Chemicals, Healthy Families made a written statement available at the hearing.[10]  A statement from Cal Dooley, President of the American Chemistry Council (“ACC”), describing ACC’s TSCA modernization principles, was also entered into the hearing record.[11]  ACC’s actions on TSCA modernization were cited by several Senators and by Administrator Jackson as a reason for optimism regarding the prospects for new legislation.


[1] See Beveridge & Diamond, P.C., Congressional Hearing Builds Momentum For TSCA Amendments, Nov. 20, 2009, http://www.bdlaw.com/news-730.html; Beveridge & Diamond, P.C., First TSCA Reform Congressional Hearing of 2009 Held February 26, Mar. 3, 2009, http://www.bdlaw.com/news-506.html.

[2] Senate Committee on Environment and Public Works and Subcommittee on Superfund, Toxics and Environmental Health, joint hearing, Oversight Hearing on the Federal Toxic Substances Control Act, Dec. 2, 2009, http://www.epw.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_id=129f8be4-802a-23ad-4217-c8c5900bf3db (compiling all witnesses’ written testimony and some Senators’ opening statements).

[3] Environmental Working Group, Pollution in People: Cord Blood Contaminants in Minority Newborns, Dec. 2, 2009, http://www.ewg.org/files/2009-Minority-Cord-Blood-Report.pdf.

[4] For more information on formaldehyde in pressed wood, see Beveridge & Diamond, Citizens’ Petitions Under TSCA Seek to Change EPA’s Agenda, April 28, 2009, http://www.bdlaw.com/news-557.html.  For more information on the bisphenol A controversy, see Beveridge & Diamond, P.C., Bisphenol A Developments in 2008: The Year in Review,  http://www.bdlaw.com/news-461.html; Bisphenol A Ban Proposals Proliferate, April 17, 2009, http://www.bdlaw.com/news-548.html.

[5] See Senate Environment and Commerce Committee, Minority page, press release, Senator Inhofe Statement on TSCA Reform (Sept. 29, 2009), http://epw.senate.gov/public/index.cfm?FuseAction=Minority.PressReleases&ContentRecord_id=0ccdc0e4-802a-23ad-4db0-7ff8d96ce095&Region_id=&Issue_id=.

[6] EPA, Essential Principles for Reform of Chemicals Management Legislation, http://www.epa.gov/oppt/existingchemicals/pubs/principles.html.

[7] See EPA, Enhancing Existing Chemical Management Under TSCA, http://www.epa.gov/oppt/existingchemicals/pubs/enhanchems.html.

[8] See Mark Duvall & Alexandra Wyatt, “Chemical Reaction: Revising Regulatory Science at EPA,” The Environmental Forum, November 2009; Beveridge & Diamond, P.C., Science at EPA Is Changing Quickly, With Big Potential Consequences, June 19, 2009, http://www.bdlaw.com/news-599.html.

[9] States’ Principles on Reform of the Toxic Substances Control Act, Dec. 2, 2009, available at http://www.saferstates.com/attachments/StatePrinciples.pdf.  The states are California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Oregon, Vermont, and Washington.

[10] See Andy Igrejas, Safer Chemicals Healthy Families, An Auspicious Day for TSCA Reform, Dec. 2, 2009, http://blog.saferchemicals.org/2009/12/an-auspicious-day-for-tsca-reform.html (overview of printed release).

[11] ACC Press Release, ACC Reacts to Senate Hearings on TSCA Modernization, Dec. 2, 2009, available at http://www.americanchemistry.com/s_acc/sec_news_article.asp?CID=206&DID=10508

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