Not playing nice: The American Chemistry Council solidifies its claim to being the “industry of no”

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

If you had any doubt when reading my post earlier this week that the chemical industry isn’t serious about real TSCA reform, watch American Chemistry Council (ACC) President and CEO Cal Dooley’s hard-line performance at yesterday’s hearing before a subcommittee of the House Energy and Commerce Committee (video link at the bottom of this page).  The legislative hearing focused on H.R. 5820, the Rush-Waxman Toxic Chemicals Safety Act of 2010 that was introduced last week.

All the themes I struck in my earlier blog post Mr. Dooley played out in spades:  more loud and long complaints aimed at every aspect of the bill; placing the worst possible interpretation on any provision subject to interpretation; playing the China and job-loss cards over and over; and last but not least, offering not a single constructive proposal of his own for reform.

A very different industry voice was also at the witness table, however – Howard Williams, V.P. & General Manager of the Pennsylvania division of Construction Specialties.  Mr. Williams deftly countered all of ACC’s theatrics, embracing all of the bill’s key provisions and making a strong business case for them. 

Mr. Williams – whose company is rooting out all of the persistent, bioaccumulative and toxic (PBT) and other dangerous chemicals it can find from its building materials, slowed only by the difficulty it’s having in getting chemical identity and hazard information from some of its suppliers – pointed to the growth his company (and its greener suppliers) is enjoying and the new jobs they’ve been able to add even through the economic downturn, as direct evidence of the power of adopting stronger chemical policies in boosting rather than impeding economic growth and stability.

Meanwhile, Mr. Dooley was finding yet more aspects of the bill to object to, including ones ACC and its members have previously supported.

Prioritization

For example, industry (like most other stakeholders, myself included) has been a huge proponent of “prioritization” by EPA – advocating that EPA identify chemicals with high hazard and exposure and focus first on them for data development and safety determinations.  Yet in his oral statement yesterday, Mr. Dooley trashed even that concept:

“Even more troubling are the provisions of the bill that would identify chemicals that would be subject to a safety determination.  The bill identifies 19 specific chemicals and requires within 12 months that the Administrator of EPA develop and maintain a list of 300 chemicals that would be subject to a safety determination.  I don’t have a clue, you know, what the rationale was to identify 300 chemicals.  But I do know that there are significant, real-world consequences resulting from a chemical being listed.” (at time 1:22:57 in the video of the hearing)

How would Mr. Dooley propose EPA prioritize chemicals without listing them?  Is he suggesting the list be kept secret?  It’s bizarre that ACC now says it’s against this type of provision, after they were so strongly for it!

Canada

Later in the hearing, Representative Diana DeGette (D-CO) asked Mr. Dooley a question, in response to his harsh criticism of the bill’s safety standard.  His answer was also very revealing:

Q:  What safety standards does your organization recommend that we adopt?

A:   We would think that we could learn some terrific lessons by looking at what Canada has done in the past couple years in instituting a reform of their chemical management system, which is very similar with the concepts that we’ve developed out where you would develop – ah, you would prioritize the chemicals based on reason – those that we should be of greatest concern.” (at 2:09:44)

(Beth Bosley, representing the Society of Chemical Manufacturers and Associates (SOCMA), agreed that Canada’s was the approach we should use.)

Of course, Mr. Dooley’s answer did not identify a safety standard at all – something ACC has yet to do in any form or forum – but rather a process that precedes application of a safety standard.  (Canada’s actual safety standard for assessing and regulating chemicals is similar to, but differs in some key respects, from that under current TSCA, see pp. II-3 and 4 of this report.)

Ironically, however, what Mr. Dooley did describe and embrace in his answer was an explicit prioritization process of the very sort he had trashed moments earlier in his oral statement.  That prioritization process (which Canada termed “categorization”), was mandated by law in 1999, through amendments to the Canadian Environmental Protection Act.  It yielded a public list of chemicals – with more than 4,000 chemicals identified by name – that Canadian authorities found to meet one or more of the explicit hazard and exposure criteria used to identify chemicals of potential concern that were delineated in the legislation.

That Canadian categorization process is awfully similar to the prioritization process envisioned in H.R. 5820, for which Mr. Dooley hasn’t got a clue as to its rationale.

I was then asked by Representative DeGette to comment on the Canadian approach:

Q:  Dr. Denison, could you just respond to these suggestions by Mr. Dooley and Ms. Bosley?

A:   I applaud what Canada did, as a very small country with a tiny percentage of the global chemicals market, and the vast majority of those chemicals being imported rather than produced there.  It made sense for them to do what they did.  But it is far away from being a proper model for the United States of America.  In fact, they – their process was hampered enormously by the enormous data gaps that led them not to be able to even classify thousands of chemicals against the criteria that they used to prioritize chemicals. … We have a much bigger problem on our hands, and we need a much more systematic solution that speaks to the fact that we have a major part of the global chemicals market. (at time 2:11:10)

I’ve blogged extensively about the Canadian system.  The reason the chemical industry likes to point to Canada is that its approach placed almost no burdens at all on industry.  No testing or data development was required of companies, no reporting of production or use information.  Only when the list was further prioritized and pared down from more than 4,000 to a couple hundred chemicals was industry asked to provide or do anything.

Again, not bad for Canada, grossly insufficient for the U.S.

Polymers

Another of ACC’s tactics was frequently employed in yesterday’s hearing:  Misconstruing or placing the worst possible interpretation on basic provisions of the bill.  There were many examples, but here’s one:  In his oral statement, Mr. Dooley held up what he identified as a block of polysilicates (at time 1:23:40), noting its use in solar panels, smart phones and computers.  He then went on to relate a tale of doom based on what would happen according to ACC’s reading of the legislation.

But what he knows full well, yet neglected to mention, is that most polymers (polysilicates being an example) are exempted from most of current TSCA’s requirements – and that those exemptions would be carried over by H.R. 5820 and remain in place until and unless EPA determined they were not warranted; see Section 39(d).

Now, the basis for the TSCA polymer exemption is that the intrinsic properties of most polymers (especially their high molecular weights) make them non-bioavailable.  H.R. 5820 would require EPA to review the basis for this and other exemptions allowed under current TSCA, using the criteria called for in Section 39, namely that the intrinsic properties of a chemical mean that it would not pose a risk.

There’s good reason to mandate such a review:  Some polymers to which EPA had granted exemptions later had to be withdrawn, because new evidence countered its original assumption of non-bioavailability; see, for example, this exemption withdrawal issued by EPA just this January for some perfluorinated polymers.  Another example as to why the exemption ought to be revisited:  Polymer nanoparticles behave differently from conventional polymers, and some have been shown to be bioavailable as well as toxic (see, for example, here and here).

Nonetheless, it is likely that Mr. Dooley’s block of polysilicates would retain its exemption, and if it didn’t, EPA would need to have found that its intrinsic properties do pose potential concern and warrant assessment.

The addition of Section 39 to H.R. 5820 was a significant change from the discussion draft, and was done precisely to respond to industry concerns that EPA should have the authority to exempt low-concern substances from most or all of the bill’s requirements.

Mr. Dooley’s failure to acknowledge this major change at all in his written or oral statements, and to ignore it in his effort to scare-monger about the bill, is but the latest example of ACC’s unwillingness to engage in a meaningful and constructive debate over TSCA reform.