{"id":2720,"date":"2013-05-06T05:55:40","date_gmt":"2013-05-06T10:55:40","guid":{"rendered":"http:\/\/blogs.edf.org\/nanotechnology\/?p=2720"},"modified":"2024-02-12T11:01:29","modified_gmt":"2024-02-12T16:01:29","slug":"why-cant-acc-tell-the-truth-about-the-safe-chemicals-act","status":"publish","type":"post","link":"https:\/\/blogs.edf.org\/health\/2013\/05\/06\/why-cant-acc-tell-the-truth-about-the-safe-chemicals-act\/","title":{"rendered":"Why can\u2019t ACC tell the truth about the Safe Chemicals Act?"},"content":{"rendered":"

Richard Denison, Ph.D.<\/em>,<\/em> is a Senior Scientist.<\/p>\n

It\u2019s 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).\u00a0 There\u2019s 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.<\/span><\/span><\/span><\/p>\n

The latest indication?\u00a0 An <\/span>April 16, 2013 post to ACC\u2019s blog titled \u201cA new year, but the same unworkable Safe Chemicals Act<\/span><\/a>.\u201d\u00a0 The post purports to identify four fatal flaws in <\/span>the Safe Chemicals Act of 2013<\/span><\/a>, which was introduced on April 10 and is cosponsored by 29 Senators.\u00a0 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 \u2013 claims that ACC knows are false.\u00a0 <\/span><\/span><\/span><\/p>\n

Let\u2019s take the latter two \u201cflaws\u201d first.\u00a0 <\/span><\/span><\/span><\/p>\n

ACC claim<\/span>:\u00a0 The Act\u2019s safety standard is a zero-risk standard<\/span><\/span><\/span><\/strong><\/p>\n

As it has repeatedly for several years, ACC\u2019s blog post claims the Safe Chemicals Act\u2019s safety standard is a \u201czero risk\u201d standard.\u00a0 ACC knows this to be false \u2013 because its member companies that make food-use pesticides have operated under the exact same standard<\/em> for nearly 20 years, since 1996.<\/span><\/span><\/span><\/p>\n

\u00a0At issue is the section of the Act that requires that chemicals be shown to meet a standard of \u201creasonable certainty that no harm will result to human health or the environment.\u201d\u00a0 This language is taken directly from the Food Quality Protection Act of 1996 (FQPA).\u00a0 Now here\u2019s the irony in ACC\u2019s claim: \u00a0The \u201creasonable certainty of no harm\u201d standard was put into FQPA expressly to replace an actual zero-risk standard that applied prior to its passage \u2013 the so-called Delaney Clause.<\/em><\/strong>\u00a0 Indeed, industry had fought hard for years against the <\/span><\/span><\/span>Delaney Clause, which dated all the way back to 1958<\/span><\/a>, and it hailed its replacement with the \u201creasonable certainty\u201d standard in FQPA as a major victory.<\/span><\/span><\/span><\/p>\n

The legislative history of FQPA makes clear that the \u201creasonable certainty\u201d standard is not<\/em><\/strong> zero-risk.\u00a0 Rather, it refers to EPA\u2019s use of quantitative risk assessment to set an acceptable level of risk<\/em>, taking into account exposures from all sources and the heightened vulnerability of children.\u00a0 See pages 40-41 of <\/span>this House Report that accompanies the final adopted version of FQPA<\/span><\/a>.<\/span><\/span><\/span><\/p>\n

Likewise, EPA\u2019s implementation of FQPA is and always has been based on quantitative risk assessment to set an acceptable level of risk<\/em>.\u00a0 See, for example, EPA\u2019s website:\u00a0 <\/span><\/span><\/span>\u201cSetting Tolerances for Pesticide Residues in Foods.\u201d<\/span><\/a><\/p>\n

ACC claim<\/span>:\u00a0 \u201cManufacturers would be required to conduct an aggregate exposure assessment of every chemical they produce.\u201d\u00a0 <\/span><\/span><\/span><\/strong><\/p>\n

Wrong again.\u00a0 EPA, not industry, assesses chemical risks under the Act.\u00a0 ACC\u2019s blog post repeats this false claim that ACC has been making since 2010.\u00a0 And it knows this claim is untrue.\u00a0 <\/span><\/span><\/span><\/p>\n

Under the Act, EPA \u2013 not manufacturers \u2013 makes safety determinations<\/em><\/strong>, based on its assessment of the aggregate of exposure from the various uses and sources of a chemical.\u00a0 The Act could not be clearer in this regard; section 6(d)(1)(B)(ii) states:<\/span><\/span><\/span><\/p>\n

\u201c(ii) DUTIES.\u2014For purposes of this Act\u2014<\/span><\/span><\/span><\/p>\n

(I) it shall be the duty of the manufacturer or processor of a chemical substance to provide sufficient information for the Administrator to determine whether the chemical substance meets the safety standard<\/em><\/strong>; and<\/span><\/span><\/span><\/p>\n

(II) it shall be the duty of the Administrator to determine whether a chemical substance meets the safety standard<\/em><\/strong>.\u201d<\/span><\/span><\/span><\/p>\n

(emphases added; see <\/span>pp. 98-99 of the Act<\/span><\/a>)<\/span><\/span><\/span><\/p>\n

ACC first made this false claim at a hearing in July 2010, relating to a similar provision in TSCA reform legislation under consideration by the U.S. House of Representatives.\u00a0 Cal Dooley, ACC\u2019s President and CEO, <\/span>made the following statement<\/span><\/a>:<\/span><\/span><\/span><\/p>\n

\u201cFor example, the bill requires that \u201caggregate exposure\u201d to a chemical or a mixture meets the \u201creasonable certainty of no harm\u201d standard.<\/span><\/span><\/span><\/p>\n

This means that when a chemical or mixture is listed for a safety determination, the manufacturer(s) carries the burden of showing with reasonable certainty not just that the company\u2019s use of the chemical and any resulting exposures from those uses pose no harm, but that all other aggregated exposures<\/strong> from all other uses<\/strong> of the chemical pose no harm. It is not clear to us how any company could actually do that.\u201d (emphases in original)<\/span><\/span><\/span><\/p>\n

At that hearing, Mr. Dooley\u2019s statement was directly challenged and corrected, both by one of the sponsors of the bill and by me, who was also testifying at the hearing.\u00a0 See pp. 95-6, lines 1815-1859 and pp. 94-5, lines 1792-1801, respectively, in <\/span>this transcript of the hearing<\/span><\/a>.<\/span><\/span><\/span><\/p>\n

Since then, the language in question was even further refined to make absolutely clear that EPA, not industry, does the aggregate exposure assessments.\u00a0 Yet Mr. Dooley and ACC continue unabated in repeating this false claim.<\/span><\/span><\/span><\/p>\n

Of course, none of this addresses the substantial merits of and support for the common-sense notion that judging the safety of a chemical should take into account the fact that people are often exposed to it from more than one source.\u00a0 This feature of the Safe Chemicals Act\u2019s safety standard has been endorsed by major medical groups and is a key recommendation of the National Academy of Sciences (an august body that in other contexts ACC loves to cite as the ultimate authority).<\/span><\/span><\/span><\/p>\n

\u00a0<\/span><\/p>\n

So now let\u2019s look at the first two \u201cflaws\u201d ACC claims are in the Safe Chemicals Act.\u00a0 <\/span><\/span><\/span><\/p>\n

ACC claim<\/span>:\u00a0 \u201cIts proposed prioritization system is unclear and circuitous, and frankly doesn\u2019t make much sense.\u201d<\/strong>\u00a0 <\/span><\/span><\/span><\/p>\n

This claim carries two-fold irony.\u00a0 <\/span><\/span><\/span><\/p>\n

First, this section of the bill was drastically rewritten from the 2011 version, almost entirely in order to incorporate chemical industry proposals that had surfaced in various dialogues both on and off Capitol Hill.\u00a0 <\/span><\/span><\/span><\/p>\n

The batching<\/em> of chemicals was introduced to \u201cmeter in\u201d to the prioritization process the large number of chemicals on the market, so as to minimize burdens on industry as well as EPA.\u00a0 Categorization<\/em> of chemicals was introduced so that EPA could identify and set aside chemicals of low concern right up front. \u00a0The remaining chemicals would be prioritized<\/em>:\u00a0 a) based on both hazard and exposure, and b) using only existing information \u2013 both features added to respond to key industry demands.<\/span><\/span><\/span><\/p>\n

I guess there\u2019s just no pleasing some folks.<\/span><\/span><\/span><\/p>\n

The second irony is that ACC has proposed a <\/span>prioritization scheme of its own<\/span><\/a> that is far more complex and convoluted than the one in the Safe Chemicals Act.<\/span><\/span><\/span><\/p>\n

ACC claim<\/span>:\u00a0 \u201cThe SCA would \u2026 severely restrict a manufacturer\u2019s ability to protect the identity of chemicals they have developed.\u201d<\/span><\/span><\/span><\/strong><\/p>\n

Here again, ACC wholly ignores the major changes made to this section of the bill to address industry concerns.\u00a0 Under the original 2011 bill, identities of new chemicals generally would not have been eligible for protection as confidential business information (CBI).\u00a0 But under the revised 2013 bill, with the exception of chemicals of very high concern,\u00a0 new chemicals can enter the market and their identity can be masked for a period of time designated by the manufacturer as necessary<\/em>, as long as EPA deems the period to be reasonable.\u00a0\u00a0 In addition, the length of that period can itself be claimed to be CBI<\/em> if it would reveal proprietary information about investment in or revenue from sales of the chemical.\u00a0 Moreover, that period can be renewed for an additional five years<\/em> as long as the original CBI criteria are met.\u00a0 Finally, this allowance applies even to the identity of a chemical in a health and safety study \u2013 a substantial weakening of the status quo under current TSCA<\/em>.<\/span><\/span><\/span><\/p>\n

These changes amount to major concessions on the part of the bill sponsors.\u00a0 Yet ACC not only fails to acknowledge them, it continues to use the same hyperbolic language to describe them that it was using to describe the original language back in 2010 and 2011.<\/span><\/span><\/span><\/p>\n

Are TSCA chemicals really heavily regulated?<\/span><\/span><\/span><\/strong><\/p>\n

Lastly, I simply must respond to another claim ACC makes in its post, namely that EPA\u2019s imposition of some type of condition on chemicals \u201cmore than 2600 times\u201d constitutes extensive regulatory action.\u00a0 This claim, with a bit more detail, was also made in <\/span>another ACC post<\/span><\/a> responding to the New York Times\u2019 April 18, 2013 spot-on editorial, <\/span>A Toothless Law on Toxic Chemicals<\/span><\/a>. <\/span><\/span><\/span><\/p>\n

What ACC fails to mention could fill a tanker truck:<\/span><\/span><\/span><\/p>\n