What’s the path forward on TSCA reform?

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

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

With two proposals to reform the Toxic Substances Control Act (TSCA) now, more or less, on the streets, and with some time to contemplate what course reform efforts might follow, it is important to consider what it will take to actually pass legislation into law.

Regardless of what happens in the elections this November, the only viable path forward I see is a strongly bipartisan one. The negotiations over the Chemical Safety Improvement Act (CSIA) during the past year and a half have broken through some longstanding impasses.  As I’ve noted earlier, EDF believes the Udall-Vitter proposal (which does not resolve the difficult issue of preemption) fixes the key flaws in current TSCA – and does so in ways that both Democrats and Republicans can support.

Chairman Boxer has publicly released her own substantive reform proposal, in the form of a redline of the Udall-Vitter proposal.  In doing so, she raises important issues that, in addition to preemption, need to be addressed.  Some of her proposals seem relatively easy to reconcile with Udall-Vitter, and some do not.  For the record, the latter include a number of provisions EDF has supported.

With respect to federal policy and EPA authority, both the Udall-Vitter and Boxer proposals would dramatically improve upon current law and would have a strong, positive impact on the health of the nation’s people and environment.

With two strong proposals on the table, I believe the conversation we need to be having now is how we get to a bill that can pass into law in a sharply divided Congress.  That’s because, to say it again, no matter what happens in November, this is going to need to be a bipartisan effort.  I remain confident we can address the failings of TSCA through provisions that can earn broad support.

Let me say up front that I believe any attempt to return to original CSIA as a result of a breakdown in negotiations would certainly be a step in the wrong direction and away from a bipartisan path forward.  Equally problematic would be a return to the Safe Chemicals Act, which failed to gain bipartisan support.

In the remainder of this post, I'll take a look at the Boxer proposal.

A look at Senator Boxer’s proposal

Areas with few or no differences

Boxer’s proposal incorporates many or even most of the changes made to CSIA by the Udall-Vitter proposal. It adopts several of the strengthened provisions with few or no significant alterations.  Examples include the sections addressing new chemicals, information collection and reporting, and confidential business information.

In other areas, Boxer’s proposal includes relatively modest changes that, as I argued in my previous post, result in differences that should be relatively easy to bridge.  Other provisions address or elaborate on issues where changes should be possible to negotiate because there is general agreement on intent.  Let me give a few examples.

Chemical spills:  One example is the need to ensure EPA considers the potential risks arising from chemical spills like the one earlier this year in West Virginia – an intent Senator Vitter indicated he shared in the Environment & Public Works Committee’s hearing on the spill this past July; see his statement here and the archived webcast of the hearing here).  While Udall-Vitter implicitly provides EPA with authority to consider and address spills, Boxer’s proposal makes this very explicit.

User fees:  Another example is Boxer’s advancing of a specific proposal for user fees to help ensure EPA has adequate resources to implement the new program; as noted in my last post, Senators Udall and Vitter indicated the resource issue remains to be addressed and that they are in agreement that “the regulated community should share a portion of those through user fees.”

Asbestos:  For all forms of asbestos, the Boxer proposal would require EPA to expedite a safety assessment and determination (within 2 years of enactment) and risk management rulemaking (within 3 years of enactment).  While these ambitious deadlines are shorter than would be allowed under Udall-Vitter, there would seem to be little or no disagreement that asbestos should be among the first chemicals designated as a high priority.

Areas with bigger differences

Several environmental groups have publicly embraced other provisions of the Boxer proposal that differ more substantially from the Udall-Vitter proposal.

Prescription of program pace:  With respect to the pace of the program, Boxer’s proposal would require EPA to designate significantly more chemicals as high priorities over time than would the Udall-Vitter proposal.  While, as I noted before, the size of the initial high-priority list in the two proposals is not hugely different (10 vs. 15 chemicals), Boxer’s proposal would require an additional 15 chemicals to be designated as high priorities each year for the next four years, for a total of at least 60 such chemicals.  The Udall-Vitter proposal would not specify a minimum number beyond the initial list, although it would not place any limit on EPA’s ability to add chemicals at a pace consistent with agency resources.

Once user fees were in place, the Boxer proposal would require EPA to add at least three chemicals to the high-priority list for every chemical removed from this upon completion of its safety determination; the Udall-Vitter proposal would require at least one chemical to be added for every one removed.  Hence, under the Boxer proposal, the number of high-priority chemicals would invariably grow regardless of the rate at which EPA completed safety determinations.  Because identification of a chemical as a high priority starts the deadline clock ticking, it is hard to see how this provision would not lead to missed deadlines and a growing backlog of chemicals.

While a new system that addresses as many chemicals as possible as quickly as possible is clearly desirable, I’ve noted before that there are pragmatic reasons for not trying to drive too many chemicals too fast through the pipeline.  It 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.

I continue to believe that there is broad agreement on the need for an efficient system.  The issues of program pace and deadlines are integrally connected to – and should be able to be resolved through – a discussion of how reform legislation should ensure adequate resources, including user fees.

Expedited action on PBTs:  The Boxer proposal would require EPA to conduct a one-time identification of chemicals that are persistent, bioaccumulative and toxic (PBT) and have potential for high or widespread exposure.  Such chemicals would be subject to expedited risk management without having to go through a safety determination.  Renewable exemptions for critical uses would be provided.

Variants of this provision were included in versions of the Safe Chemicals Act.  The Udall-Vitter proposal has no analogous provision.

While this would seem, then, to be a very large difference, the concept of expediting risk management for a relatively small group of chemicals has been part of NGO-industry dialogues on TSCA reform for many years and has to some extent been viewed as acceptable by some industry stakeholders.  The idea behind this provision has been to allow EPA to jump-start action under a new TSCA for high-concern chemicals.

Key elements that have made this idea generally acceptable to some in industry are provided in the Boxer proposal, including that:  such chemicals would be identified on a risk basis – i.e., requiring evidence of both high hazard and high or widespread exposure; the activity would be one-time, not ongoing, with chemicals later identified as meeting the criteria undergoing the standard review process; and renewable exemptions would be available for specific uses meeting specific criteria.

Areas with very big differences

More difficult to reconcile with a bipartisan path forward is the strong endorsement given by some environmental groups to provisions in the Boxer proposal that differ much more fundamentally from the Udall-Vitter proposal.  Some of these provisions are carried over from the Safe Chemicals Act and hence have a considerable history of debate and negotiation that we need to consider.  Let me discuss just two of these as illustrative of the challenges.

“Reasonable certainty of no harm” safety standard:  The Boxer proposal would change the safety standard to “reasonable certainty of no harm,” the same standard proposed in the Safe Chemicals Act and used in the Food Quality Protection Act.  That standard has been strongly favored by the health and environmental communities, and just as strongly opposed by the chemical and related industries.  Industry interests argued instead for the standard used by the Occupational Safety and Health Administration (OSHA) – “no significant risk of material harm” – vehemently opposed by the health and environmental communities.

Without going into the details, it’s fair to say each side’s standard has considerable baggage the other side can’t live with.  After literally years of stalemate, Senators Lautenberg and Vitter tried instead a different approach in CSIA:  Retain TSCA’s current “no unreasonable risk” standard but define it and address its key flaws.  While CSIA did not fully accomplish that task, the Udall-Vitter proposal has remedied those flaws, by: ensuring the safety standard is purely health-based and protects vulnerable populations; eliminating requirements for cost-benefit analysis and balancing; striking the requirement that EPA show any restrictions it imposes are the “least burdensome” among those able to address the identified risks; and requiring that risk management be sufficient to ensure the safety standard is met (for details, see major improvements #1-4 in my first post in this series).

Aggregate exposure:  As a second example, Boxer’s proposal adopts an approach, favored by the health and environmental communities, that would require EPA always to assess “aggregate exposure” to a chemical by identifying and assessing exposures associated with every use and release and summing across all of them.  In contrast, the chemical industry has sought a “sentinel exposure” approach (more in line with most current EPA practice) by which EPA identifies what it considers the most significant exposure(s), under the assumption that controlling those exposures (where needed) will suffice to adequately reduce total risk.

Again, without going into the full history of each approach, the Udall-Vitter draft proposes a classic compromise:  Require EPA to consider whether the aggregate or sentinel exposure approach is warranted for a given chemical, and publicly justify its decision. While that may be less than satisfying to all, in the context of the entire proposal, it may well be a compromise that delivers the needed protections.

Preemption 

As noted before, the Udall-Vitter negotiations did not extend to the preemption provisions of the original CSIA.  The Boxer proposal strikes all of those provisions and would also strike the more limited preemption provisions in current TSCA; it also goes further than did the Safe Chemicals Act, which provided for “conflict preemption” under which federal law would prevail when compliance with both federal and state requirements was not possible.  Hence, under Boxer’s proposal state authority would not be preempted in any manner.

Let me be clear that, with respect to the preemption provisions in original CSIA, which are much more extensive than under current TSCA, EDF has always stated that we consider them to be far too sweeping and that they need to be narrowed substantially.

But any groups that endorse a zero-preemption approach need to consider whether that position allows for a path forward, given that it does not account for a key reason the chemical industry came to the table:  its desire for a federal solution that provides it some degree of relief from state-by-state regulation.

 

To achieve badly needed reform of TSCA, we need to fix its flaws in a manner that secures broad, bipartisan support.  The stakes are high:  If legislation can’t advance in this divided Congress, we get nothing and we sacrifice the substantial improvements that recent negotiations have yielded.  Those negotiations demonstrate there are ways to break through on issues that have been deadlocked and find agreement on provisions that offer strong protections for public health.

The good news here is that we at last have clear proposals on the table – each of which would provide significant new protections for public health and the environment – that tee up all of the critical issues that need to be resolved in reforming TSCA.

The challenge remains the same, however:  how to get it done.

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