Should we continue to take the chemical industry at its word when it insists it’s still for TSCA reform?

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

I’m one of those throwbacks that loves to read a hard copy of a newspaper in the morning.  One thing the hard copies provide that reading online doesn’t is the ability to take in those full-page paid ads that Corporate America runs on a virtually daily basis.

Lately, not surprisingly, ads from “the people of America’s oil and natural gas industry” – aka the American Petroleum Institute (API) – are appearing frequently in the New York Times and Washington Post.  In one recent ad, API asserts:  “Above all else, the people of America’s oil and natural gas industry are committed to safe operations.”  That one is a little hard to swallow, coming as it does not only right on the heels of the largest environmental disaster in American history, but after years of staunch opposition to stronger safety regulation.  It seems API is now all for safety, after years of being against it.

This got me thinking about the chemical industry.  The industry’s main trade association, the American Chemistry Council (ACC), now says it’s all for “modernizing” TSCA, after years of opposing any such effort.  Why am I getting suspicious that there may be no there there? 

Consider the statement ACC issued last week when House of Representatives Chairmen Rush and Waxman unveiled H.R. 5820, the Toxic Chemicals Safety Act of 2010 – the formal TSCA reform bill that started as a discussion draft back in April.

First, note ACC’s subtle effort to rewrite history, à la API:

“We have long been an advocate for modernization of our nation’s chemical safety laws,” said ACC President and CEO Cal Dooley.

Oh really?  Where were you, ACC, over the last two decades when many of the rest of us were actually trying to modernize TSCA or to cope with its gross inadequacies?  The answer:  ACC was staunchly defending the law.

Here’s a telling excerpt from ACC’s testimony at an August, 2006 Senate hearing:

“In our view, TSCA is a sound statutory and regulatory system.  It is a robust vehicle that can effectively address emerging chemical issues … The American Chemistry Council believes that the Toxic Substances Control Act provides a high level of health and environmental protection in the manufacture and use of chemical substances.”

So, like API, ACC decided to pull off an opportune switch in its position.  That switch came when ACC began to read the writing on the wall, just a little over a year ago, and happened about as quickly as you can say bisphenol A.

Okay, so maybe ACC finally saw the light.  But something in the subheadline of ACC’s statement last week then caught my eye:

More improvements will be needed to ensure safety, innovation, jobs”

Something about those last three words rang eerily familiar – and then I remembered where I’d seen this curious triad of mom-and-apple-pie nouns strung together before:  Why, it’s the tag line of the Coalition for Chemical Safety, the industry’s astroturf (i.e., fake grassroots) group set up last fall, just after ACC’s rolled out its 10 Principles for Modernizing TSCA.

While pretty much everyone knew who was behind that artfully deceptive coalition made up of “people like you,” ACC never has owned up to being the instigator.  Maybe this subheadline is its way of fessing up at last?  (In the interest of full disclosure, the Coalition for Chemical Safety was the inspiration for an animated video released three weeks ago by the Safer Chemicals, Healthy Families coalition, of which EDF is a member.)

Okay, you say, that’s just industry being industry.  Aren’t they now engaged in pressing for reform?  And that’s where the real problem lies:  I don’t think so.

To be for reform, you have to work for reform.  And frankly, ACC’s been slacking off.

Let’s go back to mid-April, when Chairmen Rush and Waxman granted industry a big concession: They introduced a “discussion draft” rather than a bill, to signal to stakeholders, but especially to the chemical industry, that they were open to suggestions on how to improve it.  Many provisions were indeed left wide open for fleshing out.  One example:  EPA’s minimum data requirements “may provide for varied or tiered testing.”  An all-but-engraved invitation to suggest how to vary or tier the requirements, wouldn’t it seem?

The House staff then convened an intensive process to get input on how to improve the draft, holding ten separate 2-hour sessions devoted to key topics.  ACC or its member companies attended every one, as did I.

Then the staff requested further suggestions from all stakeholders in writing, and pushed off introduction of the bill to take it all in.

As a close-at-hand witness throughout it all, I have to say the chemical industry has been nothing but loud and long with complaints aimed at every proposal put forth by staff or other stakeholders.  It’s gone out of its way to place the worst (from its perspective) possible interpretation on any provision subject to interpretation – many of which, ironically, I think were left open by the drafters precisely to invite further definition and refinement based on the industry’s, as well as other stakeholders’, input.  The industry also used its old tricks, playing the China card (as in: “you’ll drive the industry to China,” “innovation will still happen, only in China”) so many times I lost count.

But the last straw for me has been the utter failure, in all this time, of the chemical industry to come forward into the public realm in which this debate is taking place, with any constructive, coherent proposals for reform.

The basic concept of the safety standard in H.R. 5820 – “reasonable certainty of no harm” – dates back all the way to the 2005 version of the Kids-Safe Chemicals Act.  The industry has made clear all along it hates that standard, calling it unworkable, impossible to meet, possibly illegal, and so on.

You might think, in all that time and out of all that vitriol, it would have come up with and proposed its own safety standard as an alternative.  You would be wrong.

Outside of its lofty principles (and it is quick to say about others’ principles that the devil is in the details), the industry has put forth essentially nothing.

Here’s another episode that speaks volumes.  A couple weeks ago, as the House Energy and Commerce Committee was taking up oil spill legislation, one member planned to offer a modest amendment to give EPA the authority to require testing of chemical dispersants by issuing an order, rather than having to go through an onerous and time-consuming rulemaking.  EPA has signaled its desire to have such authority in the context of TSCA reform.

One of ACC’s vaulted TSCA modernization principles (#4) actually embraces this concept directly:

“EPA should be authorized to require companies, as appropriate, to generate relevant new data and information to the extent reasonably necessary to make safe use determinations without having to prove risk as a prerequisite or engaging in protracted rulemaking.” (emphasis added)

Yet what did the chemical industry do in response to this proposed amendment?  It pulled out all the stops to kill it dead.

ACC seeks to avow that it still supports TSCA modernization, as attested to by the relatively mild tone of its statement issued last week.  (Contrast ACC’s with the one issued by the Society of Chemical Manufacturers and Associates (SOCMA), which suggested the new bill would all but spell the end of civilization as we know it.)

ACC may even comment on this blog about how it is committed to TSCA reform, as it’s done in the past.  Don’t believe it.  Don’t believe it until you see ACC working for reform, rather than against it.

In sum, ACC’s deeds, as opposed to its words, have been to oppose every reform proposal that is offered, and to offer up none of its own.

More than a year after its apparent epiphany, can we see any real evidence that the chemical industry now really supports TSCA reform, after so many years of being against it?

I’m still waiting.

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