Thoughts on the Final Senate Hearing on TSCA Chemical Control Reform

Yes, I said the final hearing. This most certainly will be the end of the hearings, marking number 5 or 6 (I lost count) over the last year in the House and Senate. Yesterday's hearing was rather brief, only a little over an hour, with Democratic Senators Lautenberg (NJ) and Whitehouse (RI) present for the duration and Republican Senator Vitter (LA) reading his very brief opening statement and then leaving. No other Senators participated, which is why the questioning was so brief.

So what was new? In short, not much (see full testimony on the EPW web site and also linked individually below). My sense was this was a perfunctory hearing as a courtesy to industry but that the bill is pretty much ready to be introduced. I would expect it within days and certainly no later than the end of the month.

The witnesses, all from industry, offered much similarity in their comments, though I think you could see a difference between the manufacturers and the downstream users of chemicals. The manufacturers, represented by Dow Chemical, Dupont, Boron Specialties (for SOCMA) and NPRA (petrochemical companies) generally focused on having EPA prioritize chemicals for further review, and then only for those chemicals require additional hazard testing and exposure information to be provided. There was a concern that the new law not impose restrictions and bans that would disrupt markets and uses. They felt that EPA should be given more power to require new information as needed, but that there should not be a REACH-like general data call-in for all chemicals based solely on tonnage and not relative hazard or risk.

The two downstream users, represented by Kaiser Foundation Health Plan and Construction Specialties, emphasized that they are ready and willing to move toward sustainable chemistry in their products but often lack the information they need to make decisions. They advocated a "know and disclose" policy in which chemical companies would be required to pass along sufficient information on the chemicals in products being purchased by downstream users so that downstream users can assess their best options. If needed, they felt a third party could be used to protect the confidential business information of the manufacturers.

In the end it seems there are basic questions that may result in some disagreement on the details of the new law, despite there being significant agreement by all stakeholders that TSCA must be modernized. In their public statements, industry clearly has indicated they believe EPA should do the up-front work of assessing the TSCA Inventory, prioritizing a subset of chemicals that need closer attention, and focusing their data call-in efforts only on that subset. They do not support a general data call-in along the lines of REACH, especially if there is no attempt to "reset" the TSCA Inventory beforehand (i.e., eliminate those chemicals on the Inventory that just are not produced any more).

Senators Lautenberg and Whitehouse, on the other hand, seem very much focused on the "protection of human health and the environment" side of the discussion. They clearly believe that we need health and safety data on all chemicals in the market place. Their public pronouncements indicate that they believe the onus should be on industry to provide sufficient data for assessment, but that they don't necessarily trust industry to make that safety determination themselves. Senator Whitehouse, in fact, in his final questioning yesterday, asked (rhetorically) whether it made sense to trust the chemical companies to avow safety of their products like we trusted the tobacco companies to avow safety of cigarettes. Perhaps not a particularly valid criticism, but it does seem to reflect the Democratic Senators' belief that industry should be required to provide data and EPA should be responsible for making a final safety determination.

Previous commentary on TSCA reform can be found by going here and scrolling down.