Category Archives: TSCA Reform

The perverting of prioritization: How a good idea for TSCA reform went bad – and how to save it

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

For years, the concept of prioritization as an element of TSCA reform has enjoyed support from a broad array of stakeholders.  The number of chemicals in active commerce is large, if uncertain:  surely less than the 85,000 listed on the TSCA Inventory, but still in the tens of thousands. That sheer number demands that EPA develop and apply a process to decide where to start and how to sequence the enormous task of reviewing the safety of those chemicals. 

There has also been widespread agreement that EPA should make an initial pass using available information to identify three groups of chemicals:  a) those that present significant hazard or exposure potential or both; b) those for which existing information doesn’t raise such concerns; and c) those that need more information to determine their level of concern.

As conceived, prioritization was to be a low-stakes proposition for the various stakeholders, simply the means to get the new system up and running.  Prioritization decisions would not be final actions; rather, they were expressly designed to minimize dispute, and would be barred from legal challenge.  Chemicals identified as high priority and in need of immediate scrutiny would get a more thorough assessment before any decision as to whether they posed significant risk and required a regulatory response.  Chemicals identified as low-priority would be so designated provisionally based on less than a thorough assessment, and could be revisited if and when new information arose.  And chemicals lacking sufficient information to be prioritized would be subject to further data collection and generation, and then funneled back into the prioritization process.

These concepts are well-established both in the outcomes of industry-NGO negotiations and in heavily negotiated provisions of the more recent incarnations of the Safe Chemicals Act.

But then some folks got greedy.  Read More »

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Report: Staggering amounts of toxic chemicals produced across America

Alissa Sasso is a Chemicals Policy FellowRichard Denison, Ph.D., is a Lead Senior Scientist.

[Cross-posted from EDFVoices blog]

Recent spills in West Virginia and North Carolina cast a spotlight on toxic hazards in our midst. But as bad as they are, these acute incidents pale in scope compared to the chronic flow of hazardous chemicals coursing through our lives each day with little notice and minimal regulation. A new report by EDF, Toxics Across America, tallies billions of pounds of chemicals in the American marketplace that are known or strongly suspected to cause increasingly common disorders, including certain cancers, developmental disabilities, and infertility.

While it’s no secret that modern society consumes huge amounts of chemicals, many of them dangerous, it is surprisingly difficult to get a handle on the actual numbers. And under current law it’s harder still to find out where and how these substances are used, though we know enough to establish that a sizeable share of them end up in one form or another in the places where we live and work.

Our new report looks at 120 chemicals that have been identified by multiple federal, state and international officials as known or suspected health hazards. Using the latest, albeit limited, data collected by the U.S. Environmental Protection Agency, we identify which of these chemicals are in commerce in the U.S.; in what amounts they are being made; which companies are producing or importing them; where they are being produced or imported; and how they are being used. An interactive online map accompanying the report lets the user access the report’s data and search by chemical, by company, by state, and by site location.

Among our findings:  Read More »

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House TSCA reform discussion draft: Major problem #2 – Preemption of State authority

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

The House’s discussion draft of the Chemicals in Commerce Act (CICA) issued last week was accompanied by statements from both its sponsor and the American Chemistry Council (ACC) claiming that it represents a “balanced” approached to reform of the Toxic Substances Control ACT (TSCA).

Despite the rhetoric, however, the draft is anything but balanced, and instead pegs the needle far to one side of the dial.  My earlier post describes the massive requirements EPA must meet in order to regulate a dangerous chemical and how far out of kilter those requirements are compared both to current TSCA and to the Chemical Safety Improvement Act (CSIA), especially as the latter is being revised via ongoing negotiations.

This post focuses on another area in which the CICA draft takes an extreme position:  its preemption of state authority, which is far more sweeping than under current TSCA or even CSIA as introduced.  But first let me start by arguing that any preemption needs to follow – not precede – final EPA actions that are based on robust information.  Read More »

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House TSCA reform discussion draft: Major problem #1 – EPA regulatory hoops

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

Imagine the following scenario under a new TSCA based on the House discussion draft issued last week:  A major consumer products company decides to expand its line of air fresheners with a new peppermint flavor.  After introducing the new product, information surfaces indicating that one of the product’s ingredients that imparts that aroma causes mutations in a standard genetic toxicity test.

Based on the high hazard and exposure potential, EPA designates the chemical as high priority, requires additional data to be generated, and conducts its safety assessment, concluding the chemical is very likely to be a human carcinogen and poses significant risk when inhaled at levels associated with normal use of the air freshener.

EPA’s safety determination concludes the chemical “will result in an unreasonable risk of harm to human health,” and so EPA initiates the requisite rulemaking to restrict use of the chemical.  Under the House discussion draft (section 6(f)(4)), here’s what EPA would have to prove in order to take any regulatory action:

  • its restriction is “proportional” to the risk involved;
  • the restriction “will result in net benefits;”
  • the restriction is “cost-effective” compared to all alternative restrictions;

AND, here’s the real kicker:

  • there are “technically and economically feasible alternatives that materially reduce risk to human health or the environment compared to the use proposed to be prohibited.”

In other words, before it could act, EPA would have to find a safer, ready-off-the-shelf alternative peppermint flavor for the consumer products company to use instead of the human carcinogen.  And all of the burden of proof – of proportionality, net benefits, cost-effectiveness, technical feasibility, economic feasibility and comparative safety – would rest entirely on EPA and none of it on the company that markets the product or makes the chemical for that intended use.

Something just doesn’t smell right, wouldn’t you say?

These provisions of the House discussion draft would take what is arguably the most fatal flaw in current TSCA – EPA’s inability to regulate dangerous chemicals due to an onerous and paralyzing cost-benefit analysis requirement – and actually make it worse.  While the draft would strike TSCA’s requirement that EPA show any restriction it proposes is the “least burdensome,” it would replace it with evidentiary and analytic burdens that are even more onerous and paralyzing.

There’s a far better and fairer way to deal with the scenario I’ve outlined:  Give EPA the authority to grant exemptions for certain uses of an unsafe chemical – but only for uses that are critical or essential.  That would ensure EPA can effectively restrict non-critical or essential uses of dangerous chemicals.

The seeds of this exemption approach are planted in the Senate’s Chemical Safety Improvement Act (in section 6(c)(10)), although there are other major problems with those provisions of CSIA as introduced (happily, considerable progress toward resolving those problems has been made in the ongoing negotiations on CSIA).

Here’s how an exemption process should work:  EPA would have authority to grant exemptions for uses of an unsafe chemical it finds to be critical or essential.  And companies who believe their use of a chemical is critical or essential could seek such an exemption – but the burden would be on them to show there are no safer, viable alternatives.  The exemptions would be time-limited, and renewable if the need for the exemption is demonstrated to remain.  And EPA would have full authority to impose conditions on such uses needed to protect human health and the environment.

But to force EPA – as the House discussion draft would do – to have to find for a company viable, safer alternatives to a dangerous chemical for each and every use of that chemical it proposes to restrict is simply preposterous.

 

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EDF Statement on House TSCA Reform Discussion Draft

In the latest indication of continued engagement toward reform of the Toxic Substances Control Act (TSCA), Rep. John Shimkus (R-IL), Chairman of the Subcommittee on Environment and the Economy of the House Energy and Commerce Committee, has publicly issued a new TSCA reform “discussion draft.”

The announcement of this proposal is a starting line in the House, not the finish.  Our preliminary review of the posted draft has identified very serious concerns that, if not addressed, would fail to fix key flaws in TSCA and would weaken current law.

The discussion draft has a very long way to go to yield a bill that ensures protection of public health.  We hope that Chairman Shimkus’ sharing of his proposed language in draft form – initially with committee Democrats and now with other stakeholders – portends a collaborative bipartisan process that leads to such a bill.

Significant progress has been made through ongoing bipartisan negotiations in the Senate to address key concerns voiced about the Chemical Safety Improvement Act (CSIA, S. 1009) since its introduction last May by the late Senator Frank Lautenberg (D-NJ) and Senator David Vitter (R-LA).

EDF looks forward to engaging with both Republican and Democratic offices and intends to offer proposals to make needed improvements in the discussion draft and move meaningful and effective TSCA reform legislation forward.

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Failed TSCA collides with the real world in West Virginia chemical spill this week

Richard Denison, Ph.D., is a Senior Scientist.  Jennifer McPartland, Ph.D., is a Health Scientist.

[CORRECTION ADDED BELOW 1/12/14]

If the protracted debate over reform of the Toxic Substances Control Act (TSCA) sometimes seems esoteric or abstract, the epic failure of this law could not be better illustrated than by what’s unfolding in Charleston, WV this week.

There, a major spill into the Elk River of an obscure chemical used to wash coal has disrupted the lives of hundreds of thousands of residents of the state for what is likely to be days if not weeks or longer.  The storage tank from which the chemical has leaked lies upstream from the intake for one of the city’s drinking water treatment plants.  Even before the leak had been detected or reported, the chemical was sucked into the plant and distributed through thousands of miles of pipe to homes and businesses.  Residents have been told not to drink, bathe or otherwise come into contact with the water – although some exposure clearly did occur before the warnings were issued.  Massive amounts of water are being trucked into the area.  President Obama declared the situation a national emergency.

What is particularly maddening and outrageous is that no one – not local or state officials, not the company that owns the storage tank, not the federal government – can say anything even close to definitive about what risk the chemical poses to people, even in the short-term, let alone over time.  And that’s where the failures of TSCA come into sharp focus.  Read More »

Also posted in Health Policy, Regulation | Tagged , , , | 10 Responses, comments now closed

Senate hearing builds momentum for improving and moving the Chemical Safety Improvement Act

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

Yesterday’s mega-hearing (19 witnesses, 5+ hours!) on the Toxic Substances Control Act (TSCA), held by the Senate Committee on Environment and Public Works (EPW), lent new urgency to the need for advancing long-overdue reform of this flawed and outmoded law.  And it opened a promising new phase in the long effort to get reform legislation that would protect public health through the Committee and to the Senate floor.

The hearing provided a formal opportunity for witnesses to discuss strengths as well as many of the concerns with the Chemical Safety Improvement Act (CSIA), S. 1009, the bipartisan bill authored by the late Senator Frank Lautenberg and Senator David Vitter that now has 25 Republican and Democratic cosponsors.  Notably, despite the concerns, witness after witness called on the Committee (10 members of which attended the hearing) to work to improve this bill. 

There seemed to be a remarkable level of agreement (though certainly not consensus) among both witnesses and members on several points: 

  • First, the political opening created by the introduction of CSIA represents the best chance we’ve seen in a long time to fix TSCA, with the bill serving as the starting point for the Committee.
  • Second, the compromise bill has significant flaws that need to be addressed. 
  • Third, there is a willingness on all sides to address these concerns with the current bill, and to work to keep it bipartisan. 
  • And finally, needed fixes can and should be made as the bill is taken up and advanced by the Committee.

I’ll have more to say in future posts about the concerns we and others have with the bill and how we think they can be addressed while keeping the forward momentum that was on display today. 

That won’t be easy, but as my colleague, Daniel Rosenberg of NRDC, in his testimony yesterday, brilliantly summed up the point we’re at now:  “This is no time to throw up our hands, but to roll up our sleeves.”

 

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Reality check on TSCA reform legislation

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

[NOTE:  This post was mostly written before Monday’s sad news of the death of Senator Lautenberg.  I have decided to post it now, both out of admiration for his steadfast determination to advance meaningful reform of the Toxic Substances Control Act even in a tough political environment, and to clarify and elaborate on EDF’s position supporting the introduction of the new legislation.]

Since the May 22 introduction of the bipartisan Chemical Safety Improvement Act of 2013 (S. 1009), co-sponsored by the late Senator Lautenberg (D-NJ) and Senator Vitter (R-LA) and 19 of their Senate colleagues, stakeholders have offered various reactions, ranging from strong support to unqualified condemnation.

Among the latter are those who lament – and list – all that is “missing” or has been “lost” from Senator Lautenberg’s earlier bill, the Safe Chemicals Act.  That’s the legislation that has been introduced in various forms in each of the last five Congresses, going back all the way to 2005. EDF and I personally were intimately involved in that legislation and worked hard to pass it all along the way.

But now in 2013 we need to face some tough facts:  Despite best efforts, that legislation was unable to garner support from a single Republican member of Congress, and never got further than a Senate committee’s approval on a strictly party-line vote.  That means there is simply no basis for talking about what has been “lost” from the current bipartisan legislation – for the simple reason that you can’t lose what you never had.

In their rush to condemn the new bill (“if the chemical industry supports it, it must be bad”) and fault it for failing to channel the Safe Chemicals Act, these stakeholders also rush past what should be the real test of the legislation:  How it compares to the status quo, the Toxic Substances Control Act of 1976 (TSCA).

As an editorial that ran this past weekend in the New Jersey Star-Ledger put it [my emphasis]: 

For the first time in 17 years, Congress has a real chance to pass a major environmental law. … [T]his is a breakthrough bill that deserves our support.  Its flaws can be fixed, and it has opened up a path to reform that never existed before.  As written, this compromise would be a substantial improvement over the status quo.

Just consider the alternative: a broken law that leaves EPA with no power to do its job, and only a handful of states trying to solve a serious national problem.

The legislation is clearly a compromise, one struck in part by focusing on amending the core provisions of TSCA.  That means it does not include a number of provisions – which I have strongly supported – that would expand the scope and approach of the current law:  For example, giving EPA the authority to address “hot spots” – geographic areas where residents face disproportionately high chemical exposures; and to require immediate reductions in exposure to chemicals we already know to be dangerous, such as so-called PBTs (persistent, bioaccumulative and toxic chemicals).  If they are not included in the legislation, other ways will need to be found to advance these critical objectives.

And even within its narrower scope, the legislation has flaws that need to and can be addressed as it advances through the legislative process.  A more predictable and accountable process for reviewing and acting on chemical risks is needed, and any pre-emption of state authority should be narrowed considerably and in a manner that preserves the rights of states to act until and unless EPA takes final action on a chemical.

But what is noteworthy about the new legislation – and is ignored by its detractors – is how it directly addresses the major flaws of TSCA that have been repeatedly identified by experts.  I am attaching a more detailed side-by-side that identifies these fixes as well as some trade-offs.  Here are some highlights:

  • Mandates safety reviews for all chemicals already in commerce:  When TSCA passed in 1976, it grandfathered in some 62,000 chemicals already in commerce, and gave EPA no mandate to review them for safety.  As a corollary, it falsely equated a lack of any safety data on the great majority of those chemicals with a lack of risk.

The Chemical Safety Improvement Act for the first time would require EPA to review the safety of all chemicals in active commerce.  And it makes a lack of safety data a basis for designating a chemical high-priority, which triggers EPA’s authority to require testing and a mandate to conduct a formal safety assessment and safety determination for the chemical.

  • Fixes TSCA’s “unreasonable risk” standard: TSCA’s “unreasonable risk” cost-benefit standard is widely regarded to have failed for two main reasons.  First, it blurs together what should be two distinct decisions:  a science-based decision as to whether a chemical poses a significant risk; and a risk management decision as to how to address such risks where they are found.  Second, it forces EPA to engage in paralysis-by-analysis by requiring it to prove that any action it proposes to take is the “least burdensome” of all possible options.

The Chemical Safety Improvement Act would fix both problems:  It redefines the “unreasonable risk” standard as one “based solely on considerations of risk to human health and the environment;”  consideration of costs and benefits is relegated to a separate risk management stage.  And it strikes the paralyzing “least burdensome” provision.

  • Requires affirmative safety decision before market entry for new chemicals:  Under TSCA, new chemicals undergo a cursory pre-manufacture review, and no affirmative safety decision is required before they can enter the market.  And in the review, the burden is on EPA to find a concern – hard to do when safety data are not required – in order to halt, slow or limit market entry.

The Chemical Safety Improvement Act for the first time would require EPA to make an affirmative finding of likely safety as a condition for the manufacture of a new chemical to commence.  And while EPA still could not directly require safety testing of new chemicals, it could suspend its review pending submission of needed data, or impose conditions needed to provide the requisite assurance of likely safety in the absence of such data.

  • Allows EPA to require testing by issuing orders:  Under TSCA, EPA must promulgate a regulation in order to require a company to conduct safety testing of a chemical it makes or uses.  This process is resource-intensive and can take many years.  Moreover, to require testing, EPA has to show potential risk or high exposure – a Catch-22, given that testing would typically be the way EPA would get the data needed to make such findings!

The Chemical Safety Improvement Act authorizes EPA to issue orders to require testing.  Using orders avoids the onerous rulemaking process and subsequent court challenges.  Moreover, while EPA must justify why it is using an order rather than a rule or consent agreement, it does not need to make risk findings to order testing of a chemical.

As one would expect in a compromise bill, each of these provisions also has its drawbacks (some of these are noted in the more detailed side-by-side).  But there is no question that, in each area of EPA activity and authority under TSCA, the new bill would be significantly better than the status quo.

That’s why EDF supports the introduction of this bill and will work toward its improvement and passage.  Which brings me back to my first point:  The strong bipartisan support for this bill, in contrast to the Safe Chemicals Act, means that it could actually be enacted into law

That would let EPA get started on the huge task of undoing the damage that nearly four decades of inaction under TSCA have brought about.

Also posted in Health Policy | 1 Response, comments now closed

EDF statement on the passing of Senator Frank Lautenberg

In Memoriam: Sen. Frank Lautenberg (D-NJ)

“We at EDF join in mourning today’s death of Sen. Frank Lautenberg.

“Over his long career, Frank Lautenberg was a tireless advocate for protecting America’s health and environment. As a member of the Senate Environment and Public Works Committee, he helped pass laws that have made our air and water cleaner, promoted clean energy and made our families healthier.

“EDF had the honor of working with him many times over the years, most recently on one of his top priorities — a bipartisan effort to protect Americans from the toxic chemicals they encounter every day.

“Sen. Lautenberg will be remembered as a passionate and principled statesmen who inspired all who worked with him. We will miss him dearly.”

Fred Krupp, president of EDF

###

 

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Why can’t ACC tell the truth about the Safe Chemicals Act?

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

It’s very disheartening to see just how far the American Chemistry Council (ACC) has moved away from anything resembling a good-faith effort to debate and advance meaningful reform of the Toxic Substances Control Act (TSCA).  There’s more than enough in TSCA reform for stakeholders to debate and disagree about without adding distortions and outright falsehoods to the mix, yet ACC seems intent on doing just that.

The latest indication?  An April 16, 2013 post to ACC’s blog titled “A new year, but the same unworkable Safe Chemicals Act.”  The post purports to identify four fatal flaws in the Safe Chemicals Act of 2013, which was introduced on April 10 and is cosponsored by 29 Senators.  The first two utterly ignore or fault the legislation for major changes made to it to address industry concerns, while the latter two once again restate outright falsehoods ACC has made about the Act – claims that ACC knows are false.  Read More »

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