{"id":3954,"date":"2014-09-26T06:12:10","date_gmt":"2014-09-26T11:12:10","guid":{"rendered":"http:\/\/blogs.edf.org\/health\/?p=3954"},"modified":"2024-02-12T11:01:38","modified_gmt":"2024-02-12T16:01:38","slug":"examining-claims-and-concerns-about-the-udall-vitter-tsca-reform-proposal","status":"publish","type":"post","link":"https:\/\/blogs.edf.org\/health\/2014\/09\/26\/examining-claims-and-concerns-about-the-udall-vitter-tsca-reform-proposal\/","title":{"rendered":"Examining claims and concerns about the Udall-Vitter TSCA reform proposal"},"content":{"rendered":"

Richard Denison, Ph.D.<\/em>,<\/em> is a Lead Senior Scientist.\u00a0<\/em><\/p>\n

Links to blog posts in this series:\u00a0<\/strong> Part 1<\/a>\u00a0\u00a0\u00a0\u00a0 Part 2<\/a>\u00a0\u00a0\u00a0\u00a0 Part 3<\/a><\/span><\/p>\n

In <\/span>my first post<\/span><\/a> of this series, I described in some detail how the <\/span>Udall-Vitter major redraft<\/span><\/a> of the Chemical Safety Improvement Act (CSIA) both dramatically improves that bill and would be much better than current law (preemption aside).\u00a0 In this second post, I\u2019ll examine some specific concerns being raised and claims being made about the Udall-Vitter proposal.<\/span><\/span><\/span><\/p>\n

Some of the claims and concerns suggest a huge underlying policy difference between the Udall-Vitter and Boxer proposals, when in fact the differences in the actual language or positions on those points are far smaller. \u00a0Others relate to an issue Senators Udall and Vitter have acknowledged remains to be resolved.\u00a0 And at least one suggests a departure from provisions that were included in earlier Democratic TSCA reform bills. <\/span><\/span><\/span><\/p>\n

I already addressed in <\/span>my first post<\/span><\/a>\u00a0the most prominent concern raised about the Udall-Vitter proposal: that it would restrict states\u2019 authority to regulate chemicals.\u00a0 I noted that this issue of preemption of state authority was <\/span><\/span><\/span>excluded from the scope<\/span><\/a> of the Udall-Vitter negotiations, and that it is a critical issue that remains to be resolved.\u00a0 <\/span><\/span><\/span><\/p>\n

Let\u2019s look at the other claims being made about the Udall-Vitter proposal.\u00a0 <\/b><\/span><\/span><\/span><\/p>\n

Claims about the Udall-Vitter proposal<\/span><\/span><\/span><\/b><\/p>\n

Deadlines<\/span><\/span><\/span><\/i><\/p>\n

Some observers have expressed concern that the deadlines in the Udall-Vitter proposal are too long.<\/span><\/span><\/span><\/p>\n

The Udall-Vitter proposal sets deadlines of up to three years<\/span> to complete a safety assessment and determination for a high-priority chemical (including time for any requested testing), and up to two more years<\/span> to complete a risk management rule for a chemical found not to meet the safety standard.\u00a0 It would allow EPA to extend those deadlines in the aggregate for a maximum of two more years<\/span>.\u00a0 That\u2019s a maximum of seven years. <\/span><\/span><\/span><\/p>\n

Boxer\u2019s <\/span>proposal<\/span><\/a> would reduce the seven years to six<\/span>, by carving one year off of the first deadline and leaving the other two intact; see p. 26.\u00a0 This is clearly a bridgeable difference.<\/span><\/span><\/span><\/p>\n

The reality is that completing safety assessments and determinations and risk management rules will in fact take time, if we want them done right and in a transparent manner \u2013 and certainly could in some cases take 6 or 7 years.<\/span><\/span><\/span><\/p>\n

Initial high-priority chemical list<\/i><\/span><\/span><\/span><\/p>\n

Another concern raised about the Udall-Vitter proposal is that it would require EPA to place as few as 10 chemicals on its initial list of high-priority chemicals. <\/span><\/span><\/span><\/p>\n

Boxer\u2019s <\/span>proposal<\/span><\/a> would increase that number by a quite modest amount, from 10 to 15 chemicals<\/span>; see p. 15.\u00a0 Another quite bridgeable difference.<\/span><\/span><\/span><\/p>\n

Here again, there are pragmatic reasons for these figures, given that once a chemical is designated high-priority, the clock starts ticking on the deadlines just mentioned.\u00a0 Trying to drive too many chemicals too fast through the pipeline runs the risk of EPA choosing \u201ceasy\u201d chemicals over those most needing scrutiny, or of EPA turning out work of poor quality in the rush to meet the quotas and deadlines. \u00a0So, while increasing the number of chemicals EPA assesses is clearly desirable, its ability to handle the increase is wholly or largely dependent on having sufficient resources, the next issue I\u2019ll address.<\/span><\/span><\/span><\/p>\n

Resources<\/span><\/span><\/span><\/i><\/p>\n

The Udall-Vitter proposal does not include provisions to ensure adequate resources are available to EPA to implement the new system it would establish. This concern was also included in a <\/span>February 5, 2014, letter<\/span><\/a> signed by 11 Democratic Senators sent to Senator Vitter requesting changes to CSIA to address key shortcomings. <\/span><\/span><\/span><\/p>\n

Like preemption, Udall and Vitter <\/span>directly acknowledge<\/span><\/a> the resource issue is currently unresolved and needs to be resolved in any final legislation.\u00a0 In <\/span>their response to the February 2014 letter<\/span><\/a>\u00a0(item #9), they state:\u00a0 <\/span><\/span><\/span><\/p>\n

Under the new draft, this has not yet been addressed. We agree that adequate resources are needed and that the regulated community should share a portion of those through user fees.\u00a0 We have discussed several options and are prepared to address this portion of the bill at the appropriate time, when we have a complete understanding of the resources that will be needed to implement the program.<\/span><\/span><\/span><\/p>\n

Unlike preemption, the good news about this yet-to-be-resolved issue is that there is a lot of common ground to be found.\u00a0 All stakeholders have a strong interest in having an effective and efficient system that reviews as many chemicals as possible as quickly as possible, and in a transparency and scientifically sound manner.\u00a0 <\/span><\/span><\/span><\/p>\n

And there is broad agreement that a significant portion of the needed resources should come from the regulated community through user fees or similar means.\u00a0 That\u2019s not to say there will be ready agreement on the details of how this is to be done.\u00a0 Senator Boxer\u2019s proposal has usefully proposed a fee system, and will hopefully lend momentum to addressing this critical need.<\/span><\/span><\/span><\/p>\n

Toxic torts<\/span><\/span><\/span><\/i><\/p>\n

When CSIA was introduced, an immediate point of contention was whether it was intended to restrict the right to sue companies for injury arising from chemical exposures.\u00a0 The main provision at issue, \u201cEffect on Private Remedies,\u201d would have made EPA safety determinations admissible in court and determinative of whether \u2013 or not \u2013 a chemical meets the safety standard.\u00a0 <\/span><\/span><\/span><\/p>\n

It soon became apparent that both sides worried about the implications of this provision.\u00a0 Fairly quickly thereafter, broad agreement emerged to:\u00a0 1) strike the offending provisions, 2) add \u201csavings\u201d provisions to ensure there would be no limitation on private tort actions; and 3) add language to ensure that EPA decisions were not given special treatment in private tort actions.\u00a0 Last year, agreed-to language was incorporated into revisions being made to CSIA.\u00a0 Those provisions remain in the Udall-Vitter proposal, and retained verbatim in Boxer\u2019s redline of the Udall-Vitter proposal.<\/span><\/span><\/span><\/p>\n

Concern has been raised, however, about a loophole that could limit tort actions.\u00a0 Given what appears to be a clear intent not to do so, addressing this issue would also seem readily bridgeable.<\/span><\/span><\/span><\/p>\n

Prioritization<\/span><\/span><\/span><\/i><\/p>\n

Another concern raised about the Udall-Vitter proposal is that it would allow EPA to \u201cexempt\u201d chemicals by designating them as low-priority, thereby setting them aside from undergoing safety assessments and determinations.\u00a0 This concern is heightened by the preemptive effect that low-priority designations would have under original CSIA, which is, from my perspective, a big problem that needs to be addressed along with other aspects of the preemption question.<\/span><\/span><\/span><\/p>\n

The preemption connection aside, several points need to be made here.\u00a0 The first is that Udall-Vitter authorizes EPA at any time to revise a chemical\u2019s priority status based on new information, a provision retained entirely in Boxer\u2019s redline of the Udall-Vitter proposal.\u00a0 So such set-asides of low-priority chemicals are not exemptions.\u00a0 Udall-Vitter also tightens the basis for low-priority designations (see major improvement #8 in the list I provided in <\/span>my previous post<\/span><\/a>).\u00a0 Senator Boxer\u2019s proposal would further clarify this provision.<\/span><\/span><\/span><\/p>\n

The second point is that the process of prioritization, including designation of some chemicals as low-priority, has long been a feature of TSCA reform bills.\u00a0 Going back as far as 2011, the <\/span>Safe Chemicals Act<\/span><\/a> provided for EPA to designate \u201cchemical substances requiring no immediate action.\u201d<\/span><\/span><\/span><\/p>\n

As a policy matter, providing EPA with the ability to set aside legitimately low-concern chemicals has merit.\u00a0 Many chemicals on the TSCA inventory and in active commerce are indeed of low concern; clear examples are the many plant-derived substances such as vegetable oils, sugars and fatty acids.\u00a0 To require EPA to subject such substances to full-blown safety determinations would not be a good use of agency resources.\u00a0 Other regions\u2019 policies, including <\/span>the EU\u2019s REACH regulation<\/span><\/a>, include this approach of setting aside low-concern chemicals.<\/span><\/span><\/span><\/p>\n

Of course, it is critical that low-priority designations be identified through a transparent and careful process and adhere to strict criteria.\u00a0 The Udall-Vitter proposal significantly improves on the original CSIA by requiring low-priority designations to be based on sufficient information.\u00a0 It also requires EPA to establish the process and criteria for making such designations through rulemaking, thereby deferring the many important details to the regulatory process, which is subject to public notice and comment.<\/span><\/span><\/span><\/p>\n

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

I\u2019ll take a look at the Boxer proposal in my next post, so stay tuned.<\/span><\/span><\/span><\/p>\n

\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Richard Denison, Ph.D., is a Lead Senior Scientist.\u00a0 Links to blog posts in this series:\u00a0 Part 1\u00a0\u00a0\u00a0\u00a0 Part 2\u00a0\u00a0\u00a0\u00a0 Part 3 In my first post of this series, I described in some detail how the Udall-Vitter major redraft of the Chemical Safety Improvement Act (CSIA) both dramatically improves that bill and would be much better …<\/p>\n","protected":false},"author":100,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[44,114108],"tags":[56103],"coauthors":[],"class_list":["post-3954","post","type-post","status-publish","format-standard","hentry","category-policy","category-tsca","tag-revised-csia"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/3954","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/users\/100"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/comments?post=3954"}],"version-history":[{"count":1,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/3954\/revisions"}],"predecessor-version":[{"id":12717,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/3954\/revisions\/12717"}],"wp:attachment":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/media?parent=3954"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/categories?post=3954"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/tags?post=3954"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/coauthors?post=3954"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}