Examining claims and concerns about the Udall-Vitter TSCA reform proposal

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

Links to blog posts in this series:  Part 1     Part 2     Part 3

In my first post of this series, I described in some detail how the Udall-Vitter major redraft of the Chemical Safety Improvement Act (CSIA) both dramatically improves that bill and would be much better than current law (preemption aside).  In this second post, I’ll examine some specific concerns being raised and claims being made about the Udall-Vitter proposal.

Some of the claims and concerns suggest a huge underlying policy difference between the Udall-Vitter and Boxer proposals, when in fact the differences in the actual language or positions on those points are far smaller.  Others relate to an issue Senators Udall and Vitter have acknowledged remains to be resolved.  And at least one suggests a departure from provisions that were included in earlier Democratic TSCA reform bills.

I already addressed in my first post the most prominent concern raised about the Udall-Vitter proposal: that it would restrict states’ authority to regulate chemicals.  I noted that this issue of preemption of state authority was excluded from the scope of the Udall-Vitter negotiations, and that it is a critical issue that remains to be resolved. 

Let’s look at the other claims being made about the Udall-Vitter proposal. 

Claims about the Udall-Vitter proposal

Deadlines

Some observers have expressed concern that the deadlines in the Udall-Vitter proposal are too long.

The Udall-Vitter proposal sets deadlines of up to three years to complete a safety assessment and determination for a high-priority chemical (including time for any requested testing), and up to two more years to complete a risk management rule for a chemical found not to meet the safety standard.  It would allow EPA to extend those deadlines in the aggregate for a maximum of two more years.  That’s a maximum of seven years.

Boxer’s proposal would reduce the seven years to six, by carving one year off of the first deadline and leaving the other two intact; see p. 26.  This is clearly a bridgeable difference.

The reality is that completing safety assessments and determinations and risk management rules will in fact take time, if we want them done right and in a transparent manner – and certainly could in some cases take 6 or 7 years.

Initial high-priority chemical list

Another concern raised about the Udall-Vitter proposal is that it would require EPA to place as few as 10 chemicals on its initial list of high-priority chemicals.

Boxer’s proposal would increase that number by a quite modest amount, from 10 to 15 chemicals; see p. 15.  Another quite bridgeable difference.

Here again, there are pragmatic reasons for these figures, given that once a chemical is designated high-priority, the clock starts ticking on the deadlines just mentioned.  Trying to drive too many chemicals too fast through the pipeline runs the risk of EPA choosing “easy” chemicals over those most needing scrutiny, or of EPA turning out work of poor quality in the rush to meet the quotas and deadlines.  So, while increasing the number of chemicals EPA assesses is clearly desirable, its ability to handle the increase is wholly or largely dependent on having sufficient resources, the next issue I’ll address.

Resources

The Udall-Vitter proposal does not include provisions to ensure adequate resources are available to EPA to implement the new system it would establish. This concern was also included in a February 5, 2014, letter signed by 11 Democratic Senators sent to Senator Vitter requesting changes to CSIA to address key shortcomings.

Like preemption, Udall and Vitter directly acknowledge the resource issue is currently unresolved and needs to be resolved in any final legislation.  In their response to the February 2014 letter (item #9), they state: 

Under the new draft, this has not yet been addressed. We agree that adequate resources are needed and that the regulated community should share a portion of those through user fees.  We have discussed several options and are prepared to address this portion of the bill at the appropriate time, when we have a complete understanding of the resources that will be needed to implement the program.

Unlike preemption, the good news about this yet-to-be-resolved issue is that there is a lot of common ground to be found.  All stakeholders have a strong interest in having an effective and efficient system that reviews as many chemicals as possible as quickly as possible, and in a transparency and scientifically sound manner. 

And there is broad agreement that a significant portion of the needed resources should come from the regulated community through user fees or similar means.  That’s not to say there will be ready agreement on the details of how this is to be done.  Senator Boxer’s proposal has usefully proposed a fee system, and will hopefully lend momentum to addressing this critical need.

Toxic torts

When CSIA was introduced, an immediate point of contention was whether it was intended to restrict the right to sue companies for injury arising from chemical exposures.  The main provision at issue, “Effect on Private Remedies,” would have made EPA safety determinations admissible in court and determinative of whether – or not – a chemical meets the safety standard. 

It soon became apparent that both sides worried about the implications of this provision.  Fairly quickly thereafter, broad agreement emerged to:  1) strike the offending provisions, 2) add “savings” provisions to ensure there would be no limitation on private tort actions; and 3) add language to ensure that EPA decisions were not given special treatment in private tort actions.  Last year, agreed-to language was incorporated into revisions being made to CSIA.  Those provisions remain in the Udall-Vitter proposal, and retained verbatim in Boxer’s redline of the Udall-Vitter proposal.

Concern has been raised, however, about a loophole that could limit tort actions.  Given what appears to be a clear intent not to do so, addressing this issue would also seem readily bridgeable.

Prioritization

Another concern raised about the Udall-Vitter proposal is that it would allow EPA to “exempt” chemicals by designating them as low-priority, thereby setting them aside from undergoing safety assessments and determinations.  This concern is heightened by the preemptive effect that low-priority designations would have under original CSIA, which is, from my perspective, a big problem that needs to be addressed along with other aspects of the preemption question.

The preemption connection aside, several points need to be made here.  The first is that Udall-Vitter authorizes EPA at any time to revise a chemical’s priority status based on new information, a provision retained entirely in Boxer’s redline of the Udall-Vitter proposal.  So such set-asides of low-priority chemicals are not exemptions.  Udall-Vitter also tightens the basis for low-priority designations (see major improvement #8 in the list I provided in my previous post).  Senator Boxer’s proposal would further clarify this provision.

The second point is that the process of prioritization, including designation of some chemicals as low-priority, has long been a feature of TSCA reform bills.  Going back as far as 2011, the Safe Chemicals Act provided for EPA to designate “chemical substances requiring no immediate action.”

As a policy matter, providing EPA with the ability to set aside legitimately low-concern chemicals has merit.  Many chemicals on the TSCA inventory and in active commerce are indeed of low concern; clear examples are the many plant-derived substances such as vegetable oils, sugars and fatty acids.  To require EPA to subject such substances to full-blown safety determinations would not be a good use of agency resources.  Other regions’ policies, including the EU’s REACH regulation, include this approach of setting aside low-concern chemicals.

Of course, it is critical that low-priority designations be identified through a transparent and careful process and adhere to strict criteria.  The Udall-Vitter proposal significantly improves on the original CSIA by requiring low-priority designations to be based on sufficient information.  It also requires EPA to establish the process and criteria for making such designations through rulemaking, thereby deferring the many important details to the regulatory process, which is subject to public notice and comment.

 

I’ll take a look at the Boxer proposal in my next post, so stay tuned.

 

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One Comment

  1. Posted September 26, 2014 at 2:14 pm | Permalink

    Richard

    As EWG noted yesterday at http://www.ewg.org, there are significant differences between the Vitter-Udall and Boxer proposals, including important differences with regards to the number of chemicals reviewed and deadlines for reviews.

    The Boxer counter-proposal would actually require EPA to designate 15 chemicals every year for five years – or 75 chemicals within five years of the date of enactment.

    Plus, the Boxer proposal would require EPA to add three chemicals to the list of high priority chemicals each time a chemical is reviewed, regulated and removed from the list.

    So, if EPA reviews high priority chemicals reasonably quickly, EPA could complete work on hundreds of chemicals within the next decade.

    By contrast, the Vitter-Udall proposal only requires 10 chemicals to be designated as high priority in the first year and none thereafter – except when a chemical is removed.

    So, even if EPA completed its work in a timely, far fewer chemicals would be reviewed under the Vitter-Udall proposal than the Boxer proposal.

    With regards to deadlines, your blog also suggests that the two proposals set similar deadlines for chemical review – seven years for the Vitter-Udall proposal and six years for the Boxer proposal.

    But, this omits another significant difference: the Boxer proposal also requires expedited consideration of asbestos and expedited consideration of toxic chemicals that persist in the environment and accumulate in our bodies.

    Under her proposal, asbestos would have to be reviewed and regulated within two years and so-called “PBTs” would have to reviewed and regulated in less than four years.

    I share your desire for Congress to bridge their differences, but it’s important to be clear about how the differences we need to resolve.