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.