Let the games begin: Dueling TSCA reform manifestos

Richard Denison, Ph.D., is a Senior Scientist.

Today, the American Chemistry Council (ACC) unveiled its "10 Principles for Modernizing TSCA."  Also today, the Safer Chemicals, Healthy Families coalition – of which EDF is a member – issued a news release and unveiled its 9-point "Platform for Reform of TSCA."  How do they line up?

I'll leave to you readers to decide just how much alignment (or lack thereof) there is between these dueling manifestos.  To get the ball rolling, I'll use this post to single out three key differences.

First, however, let me say I welcome the fact that ACC is finally moving beyond rhetorical flourishes about "modernization" and "the need to restore public confidence in its products."  At last ACC has begun to provide something that could become something that one can sink one's teeth into.

Equally refreshing is that ACC is now acknowledging a number of deep problems with TSCA that it has traditionally denied – problems that many of us having been raising for years.  To be specific:

  • TSCA does not require that chemicals be shown to be safe in order to be on the market.
  • TSCA's reliance on a cost-benefit rather than a health-based standard to determine safety was ill-advised.
  • EPA should be required to complete safety assessments expeditiously and within clear deadlines.
  • Companies throughout the supply chain, not just manufacturers, should be required to provide information on chemical use and exposure, as well as hazards.
  • Children are at particular risk from chemical exposures and merit special protection.
  • EPA lacks but should be given authority it can actually exercise to regulate chemicals.
  • EPA shouldn't have to prove risk to require testing of chemicals.
  • The public should have access to chemical use and exposure, as well as hazard, information.

That's all good and welcome news.  ACC has come a long way, baby.

But let's scratch below the surface a bit, and we'll see some fundamental differences quickly begin to emerge.

1.  What ACC wantsACC clearly wants the focus to be on only a few "priority" chemicals, and seeks to set aside the rest.  Indeed, ACC's principles go even further to say we should skip over all but the "most significant uses and exposures" of the priority chemicals, and then narrow things even more to consider only their "intended" uses.

What we actually needRobust data on all chemicals, not just the few we already know are bad actors.  A full understanding of all chemical uses, not just those chemical producers have knowledge of and consider most significant.  Authority for EPA to act promptly to control chemicals we already know are high-priority.

As readers of this blog know full well, the problem with ACC's approach is that it puts the cart before the horse:  The state of knowledge about chemical hazards, uses and exposures remains poor despite more than three decades of life under TSCA – so poor that we can't begin intelligently to prioritize most chemicals.

One particularly huge gap in knowledge is about the full range of uses of chemicals.  As I've discussed before, companies that make chemicals often don't know how and by whom their own chemicals are used – not even for the uses they intend for them, let alone those they may never have anticipated.  That yields a very spotty picture of real-world exposures – which may help to explain why time and again government and industry have failed to predict which chemicals we're all exposed to, let alone how or to what extent.

Hazard information about a chemical is of value regardless of its use, and can help enormously to guide selections among alternatives when considering a new or revisiting a current use.  Yet, in the name of prioritization, ACC would have us utilize various imperfect surrogates for exposure – production volume, known uses, etc. – to severely limit the number of chemicals whose hazards we would ever test for.

The evident gaps in hazard, use and exposure data add up to an inability both to prioritize and to decide a priori what's safe or not.  What's needed instead is a systematic and thorough – not piecemeal – approach, both to getting better information about chemicals, and to assessing their safety.  That's why we call for the development of at least basic information for all chemicals, and a requirement that all chemicals be shown to be safe, not just those we think might be problems based largely on supposition.

     Prioritization is a means, not an end

We fully recognize that undertaking the extent of information development and assessment needed to ensure chemical safety cannot happen overnight, given the depth of the hole that TSCA dug by grandfathering in tens of thousands of untested and unassessed chemicals – which still today account for the great majority of chemicals in use.  We welcome a legitimate debate over how fast and how best we can do all of what's needed, but not one over whether we need to.

It's one thing to prioritize chemicals to determine the order in which their safety should be determined, as long as we ultimately reach all chemicals; it's quite another to place such false confidence in priority-setting as to, as ACC proposes, sweep away most chemicals from ever being tested or assessed.

Now, none of this is to say we have to wait to control those chemicals we already know will rise to the top of anyone's priority list, such as chemicals possessing that deadly trifecta of properties of persistence, bioaccumulation potential and toxicity – the so-called PBTs – to which we know people are being exposed.  That's why we support moving expeditiously to phase such chemicals out of commerce, retaining them only for the most critical uses where no viable alternatives exist.  And we can and should be immediately taking steps to reduce exposure to other dangerous, well-studied chemicals, such as formaldehyde.

2.  What ACC wantsACC wants any requirements for testing or monitoring to be imposed by EPA strictly on a case-by-case basis.

What we actually needMinimum hazard, use and exposure data sets on all chemicals, delivered up-front, not upon request.  A major expansion in biomonitoring to encompass all chemicals with the potential for human exposure.

While ACC would free EPA at last from the Catch-22 of first having to prove risk to require testing, it would still retain significant evidentiary burdens on EPA to show that having access to data is "reasonably necessary to make safe use determinations."  Huh?

ACC remains intent on avoiding the development of robust, consistent information across chemicals in commerce.  As we've argued before, there's an inherent contradiction here, given that ACC is among the first to cry "regrettable substitution" when insufficient attention is given to what will replace a chemical targeted for restrictions.  How are we ever to compare alternatives and select safer ones with confidence without good information about them?

EDF and the Safer Chemicals, Healthy Families coalition believe that prioritization must be based, not on the current state of data gaps and supposition, but on a firm foundation of public knowledge that will only come by requiring a minimum data set for all chemicals as a condition for entering or remaining on the market.

3.  What ACC wantsACC wants to continue to pretend that people and the environment are somehow able to distinguish between multiple exposures to the same chemical just because they're regulated under different laws or by different agencies.

What we actually needAn agency (EPA) charged with conducting a holistic assessment across the aggregate of all uses and sources of exposure to chemicals.  And for chemicals that cannot be shown to be safe, the authority and responsibility to ensure that appropriate action is taken regardless of which agency or law has primary jurisdiction.

A major failing of our chemicals policies is that no one is charged with assembling a full picture of exposure to a given chemical, let alone regulating it on that basis.

Name a chemical in the headlines over the last few years – phthalates, bisphenol A, PFOA – and you're looking at a chemical with uses that span agency jurisdictions.  Phthalates in cosmetics fall on FDA's turf, while those in toys fall to the Consumer Product Safety Commission.  ACC would have us continue that atomized approach, where different agencies look at one product at a time, using inconsistent methodologies to measure and assess risk.

And people are exposed to a given chemical not just through its use in products, but through their workplaces, in air and water, and in some cases because of past uses that have yielded "legacies" of exposure, for example from contaminated dump sites or brownfields.  Different offices at EPA are in charge of each of these areas and operate under different statutory authorities.

TSCA need not be the "statute of last resort"

It is with good reason that TSCA is often called the "statute of last resort," because under it EPA must defer to any other statute that could potentially address a problem.  This is an ironic shame, but TSCA is unique among statutes in its intent (at least on paper) to address the full lifecycle of chemicals.  This feature offered the hope – unrealized – that TSCA would break down the silos that artificially divide chemical exposures into neat little, unrealistic bits.

We seek to restore that latent promise of TSCA, by requiring EPA to assess aggregate exposures and risks, across all uses of and sources of exposures to a chemical.  And if a chemical is found unsafe due to uses or exposure sources, some of which fall under another law or agency's jurisdiction, then TSCA should ensure that EPA has the authority and responsibility to ensure either that the other agency or office within EPA takes actions needed to restore safety – or, if it doesn't, that EPA acts under TSCA.

___

So, we welcome ACC in at last joining a serious debate over the future of TSCA.  But it still has a long way to go to help the rest of us bring TSCA into the 21st century.

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6 Comments

  1. Jeff
    Posted August 4, 2009 at 7:12 am | Permalink

    On Twitter? You can follow the chemical industry tweets from their meeting this am in dc – using this hash tag #TSCA

    http://twitter.com/search?q=%23TSCA

  2. Nick
    Posted August 4, 2009 at 8:04 am | Permalink

    So, ironically what 'we' want is actually almost identical to what the Europeans have been doing with their REACH legislation, which requires all substances manufactured/imported over 1 metric tonne per annum to be assessed for hazards and risk assessed to ensure that all intended uses for the substances are safe. It might then be worth noting that when EACH was announced the US government was ready to sue the European Union because of the epic trade barrier that REACH was considered likely to be (due to the need to generate hugh, animal testing intensive datasets at significant costs).

    Also it is worth noting that exposure assessment is almost always significantly more difficult than people believe when they set out, and assessing exposures to multiple substances in one go is even more difficult – and there are always differences in opinons.

    It might be easier if the various NGO groups just proposed a list of substances to be banned, then we can just ban them and move on with our lives (if they are still possible after the removal of so many substances from the market).

  3. Sophie
    Posted August 4, 2009 at 11:07 am | Permalink

    Thank you for this blog post. The third point of comparison between what ACC wants and what we actually need brought up a longtime frustration. Here in California, it is especially difficult to see Cal/OSHA interact with Cal/EPA to the degree that they are guarding their jurisdiction (the workplace environment) as opposed to combining resources and cooperating in order to protect the health of all members of the public, as well as the environment.

  4. americanchemistry
    Posted August 4, 2009 at 2:16 pm | Permalink

    Dear Richard:

    Thank you for your recognition of the American Chemistry Council’s initiative to modernize the way chemicals in commerce are managed. Working with our value chain, ACC and its members have been involved in this effort for quite some time — and we are pleased at the response to our ten principles for TSCA modernization that we announced today. While we think these principles would be a very effective guide for crafting legislation to modernize TSCA, we also want to be robustly engaged with other expert points of view on the matter. As such, ACC is committed to a stakeholder dialogue on chemical management and would again invite you to sit down with us in this discussion. If we can achieve common ground, the result will be a more effective process that enhances public health, increases consumer confidence and builds a regulatory system that is as modern as the industry it oversees.

    We look forward to future conversations with you and others as TSCA modernization progresses through Congress. The chemical industry is on the front line of innovation, safety, and environmental stewardship and we look forward to working with a broad coalition of interested parties to create an international gold standard for chemical regulation and management.

    Sincerely,

    Cal Dooley
    President and CEO
    American Chemistry Council

  5. Elizabeth
    Posted August 5, 2009 at 10:14 am | Permalink

    It is interesting to me that the ACC is supposedly committed to engaging "stakeholder dialogue." I wonder whom they are identifying as "stakeholders." It seems to me that ALL U.S. citizens are, in fact, stakeholders on this issue. Not that inclusion of all citizens is realistic, but I am skeptical because of the generic use of that term. And in these things, generic usually leads to avoidance.

  6. Posted August 5, 2009 at 1:19 pm | Permalink

    Cal:

    Thanks for taking the time to comment on what I'm sure was as busy a day for you as it was for me. It's great to see signs (increasingly since you assumed the top post there) that ACC wants to contructively engage in achieving the reform of TSCA we all seem now to agree is needed.

    Best,
    Richard

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