First Summary of Senate Hearing on TSCA Chemical Reform

As reported previously, the Senate held a hearing yesterday on TSCA reform in anticipation of Senator Lautenberg's expected introduction of an updated Kid Safe Chemical Act. The focus of the hearing was on the "current science on public exposures to toxic chemicals." Prepared testimony for each witness can be found on the EPW web site. Here are my first impressions of the hearing.

First, it was a bit perfunctory and not a whole lot new seemed to be presented. After senior Senators gave opening statements (which are almost always perfunctory), the first panel consisted of a largely returning cast of regulators who gave largely reiterative testimony. Assistant Administrator Owens reiterated the EPA "principles," Dr. Falk of CDC reiterated what CDC has been doing in their biomonitoring program, John Stephenson of the GAO reiterated what he has said in various hearings and GAO publications, and NIEHS Director Birnbaum reiterated the ongoing toxicology and biomonitoring work of her agency. It's not that these weren't important, but that they were pretty much what has already been said before.

Second, while the first panel were largely unemotional regulatory and scientist presentations, the second panel went for the heartstrings. Molly Jones Gray is a young mother who participated in the Washington Toxics Coalition biomonitoring program when she was pregnant, and was shocked to find that she had many "toxic" chemicals in her body and in her son's body when he was born. Dr. McKay of Hartford Hospital agreed that it is important to deal with issues such as the 100% lead charm mentioned by Senator Klobuchar in her remarks, but warned that we should not expect to see zero risk and that the benefits of chemicals should also be considered. Dr. Tracey Woodruff talked about women's health, in particular reproductive health, and the possible influence of chemicals. And the session wrapped up with an impassioned and animated presentation (including pictures of children splashed on a wide screen TV set up in the hearing room) by Ken Cook, co-founder and President of the Environmental Working Group (an NGO that has done some biomonitoring work). The intended effect was to draw out the natural emotional and protective instincts that all parents have for their children. In essence the second panel said largely the same things as the first panel, but it likely had much more impact.

Third, Senator Lautenberg will clearly be introducing the new bill "soon." While "soon" has been a bit of a moving target it is obvious that it now means a matter of weeks (I would say at the latest it will be Earth Day, April 22nd, though I believe the intention is to get it out by sometime in March). Full Committee Chair Senator Boxer was effusive in her praise for Senator Lautenberg's work. She also signaled what can be anticipated to be a "passing of the torch" as she thanked Senator Klobuchar for taking on the Chairmanship of a new Subcommittee on Chidren's Health. Given that Lautenberg is now 86 years old and the emphasis on children's health in the "new TSCA," it seems likely that Senator Klobuchar will take over the mantle in this area.

Fourth, while industry, NGOs, the public, academics, and regulators all agree that TSCA definitely needs to be modernized, it was clear that the party talking points are still a major factor in the ongoing discussions. Platitudes abounded from both sides from those Senators who attended (which wasn't many, and most didn't stay long). That said, Senator Lautenberg seemed to understand the importance of chemicals in every day life (and said so), as did other Democratic Senators. Senators Inhofe and Vitter, however, seemed to be simply mouthing the Republican "government is overstepping authority" lines without really caring if they sounded like parodies of themselves.

Fifth, EPA will press on while TSCA reform is being debated in the Congress. EPA has made it clear in words and actions that they intend to "use to the fullest" what they believe to be their current authority under TSCA.

I'll follow up this post with some ideas of what I think the new version of the Kid Safe Chemicals Act will include. I'll also offer some take away points from the testimony given in yesterday's hearing.

Stay tuned. We'll be seeing a lot of activity on TSCA reform in the next few weeks.

Why TSCA Chemical Reform is Needed - The Lost Orphan Chemicals

As a Senate hearing on reform of the Toxic Substances Control Act (TSCA) gets underway today, word comes that EPA is working on a new rule that will mandate that companies who plan to manufacture or use dozens of High Production Volume (HPV) chemicals will have to provide the data EPA lacks before the agency will approves the new uses. The significant new use rule (SNUR) has been used before by EPA, but never to this extent. The SNUR is expected to be issued along with a new Section 4 test rule requiring data on "orphan chemicals."

And orphans are what I really want to talk about. Way back in 1998 a voluntary program called the HPV Chemical Challenge was initiated. Industry agreed to provide health and safety data on a list of about 2800 HPV chemicals, that is, chemicals that are produced at volumes of more than 1 million pounds per year. The program was supposed to be completed by 2003, later extended to 2005, and as of this writing in 2010 still has not been completed (though EPA long ago moved most of their resources to other programs). While there are many problems in compliance with the voluntary program, there were also several hundred chemicals for which no company stepped forward to sponsor. These "orphan chemicals" were the subject of three Section 4 test rules, plus the 4th that is now in preparation.

But the first one, originally proposed in 2000 but only finalized in 2006, is the only one that has actually been implemented...and then for only 17 of the original 37 chemicals proposed. The second and third test rules, covering only 19 and 29 chemicals respectively, have languished in the proposed stage as industry challenges the EPA request. Keep in mind that all EPA is doing is requiring there to be health and safety testing on chemicals that are produced in very high quantities and for which Agency experts suspect potential for hazard. Meanwhile, there are hundreds more "orphans" to be addressed, along with about 1800 other HPV chemicals for which industry did provide data and several hundred others for which industry promised to provide data but have failed to follow through.

This is just one of many examples of how the hurdles are so high for EPA under the current version of TSCA that they can't even require companies to provide health and safety testing on very high production volume chemicals. The process of even proposing such testing takes years and only a few chemicals can be addressed at a time.

Clearly the current TSCA law is broken in this respect. Perhaps today's hearing will help speed up the process of introducing the new bill. The time for action has arrived.

[Update on yesterday's post in which I suggested that perhaps Senator Boxer would be the one to sponsor the Senate version of the Kid Safe Chemical Act. However, I received a comment noting "on good authority that it is Senator Lautenberg who is writing the bill. Senator Boxer is still neck deep in Cap and Trade." Senator Lautenberg, of course, introduced the previous versions.]

MORE BREAKING NEWS: Tomorrow's Senate Hearing May Show Shift in TSCA Chemical Reform Strategy

As noted in my second post of the day yesterday, the Senate will hold a hearing tomorrow, February 4th, on "Current Science on Public Exposures to Toxic Chemicals." The hearing will be chaired by Senator Frank Lautenberg, who chairs the subcommittee on Superfund, Toxics and Environmental Health. All eyes have been on Lautenberg to reintroduce an updated version of the Kid Safe Chemical Act.

But maybe Lautenberg won't be the main focus. It seems that the House of Representatives may be taking the lead in drafting the new version. In the past, the House (either Henry Waxman or Hilda Solis) simply introduced the same bill that Lautenberg introduced in the Senate. And in another twist, it may be Senator Barbara Boxer, who chairs the entire EPW committee, that will be the main sponsor of the Senate version of the bill rather than Lautenberg. This seems like a good possibility given that Boxer is facing a stronger than usual reelection campaign this year from former Hewlett-Packard CEO Carly Fiorina. It's likely that being out in front of TSCA reform will be appealing to the very environmentally-conscious Californians who want to keep her in office.

So anticipation is now starting to get palatable as a TSCA reform bill approaches. Expect to see another hearing in the next few weeks in the House of Representatives, probably a combined Subcommittee/full Committee chaired by both Bobby Rush and Henry Waxman, followed shortly thereafter by reintroduction of a bill that will take portions of the Kid Safe Chemical Act but also a hefty dosing of a very different strategy. If the strategy does change, this gives even more credence to the probability that it will be Senator Boxer front and center.

Meanwhile, I'll keep posting on the hearings as they happen tomorrow.

BREAKING NEWS: Senate to Hold TSCA Chemical Control Hearing on Thursday

"Senator Frank R. Lautenberg (D-NJ), Chairman of the Subcommittee on Superfund, Toxics, and Environmental Health, will convene a hearing to examine the current science on public exposures to toxic chemicals."

So opens the announcement today on the Senate EPW web page. This is the same Senator Frank Lautenberg who is widely expected to reintroduce an updated version of his Kid Safe Chemical Act. The fact that he is holding a hearing is a strong sign that his reintroduction is following the path I noted in earlier posts here and here.

This particular hearing focuses on exposure aspects and is entitled "Current Science on Public Exposures to Toxic Chemicals." Lautenberg chairs the subcommittee on Superfund, Toxics and Environmental Health, which is part of the Committee on Environment and Public Works (chaired by Senator Boxer), which held a TSCA hearing in December.

Following opening remarks, two panels are scheduled to be participate, as follows:

Panel 1

Stephen Owens (Assistant Administrator, Office of Prevention, Pesticides and Toxic Substances Environmental Protection Agency)

Henry Falk M.D., M.P.H. (Acting Director, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry, Centers for Disease Control and Prevention)

John Stephenson (Director, Natural Resources and Environment, U.S. Government Accountability Office)

Linda Birnbaum Ph.D., D.A.B.T., A.T.S. (Director, National Institutes of Environmental Health Sciences)

Panel 2

Molly Jones Gray (Participant in a Biomonitoring Study)

Ken Cook (President, Environmental Working Group)

Charles McKay MD FACMT, FACEP, ABIM (Division of Toxicology, Department of Emergency Medicine, Hartford Hospital)

Tracey J. Woodruff PhD, MPH (Associate Professor and Director, Program on Reproductive Health and the Environment, Department of Obstetrics, Gynecology, and Reproductive Sciences, University of California, San Francisco)

I will follow the hearing and report on the testimony. Biomonitoring seems to really be getting a lot of "exposure" (pun intended) in these hearings, so it would surprising to see any TSCA reform bill that lacks some type of biomonitoring requirement...or at least the use of biomonitoring trigger the identification of a chemical of concern.

Joint USA/Canada Great Lakes Strategy Could Help or Hinder TSCA Chemical Reform

Last month the Great Lakes Binational Toxics Strategy (GLBTS) issued a report stating that they had achieved 12 of the 17 goals it set out to accomplish when the agreement was signed by the US and Canada in 1997. The report sets the stage for a not unsurprising face off between industry (who wants to scuttle any future agreements) and environmentalists (who want to expand future agreements to include new chemicals). How this plays out could both help and hinder the prospects for reform of the Toxic Substances Control Act.

The GLBTS was added in 1997 to the Great Lakes Water Quality Agreement, which was originally signed in 1972 and has been updated periodically. EPA and Environment Canada are now working to renegotiate the agreement, which they hold will allow them to build on the successes of the past to identify and address new chemicals of particular interest to the Great Lakes, over which both Canada and the US cooperate to protect. The GLBTS set milestones for reducing the levels of toxics in the Lakes.

Industry is opposed to the renegotiation, arguing that they should wait until the US decides how it will reform TSCA before expanding the GLBTS. They argue that the achievements have been largely accomplished through voluntary efforts by industry working with the binational regulators. Environmental groups counter that it took 12 years to reach what they say are modest goals, and then not even all of them. They prefer to see the voluntary actions made mandatory, with much more aggressive timelines for completion. They also argue that the initial goals were based on the "low-hanging fruit," that is, the easy ones - chemicals that had already been identified as of concern.

It seems likeley that the effort to renegotiate and expand the GLBTS will add to the pressure to reform TSCA. Industry is currently faced with a multitude of state-initiated actions, and the GLBTS would add yet another set of standards by which industry must comply. They would prefer a single national standard in the US (i.e., TSCA reform) and preferably one that coordinates with Canada, the EU and other regulatory bodies to maximize the cross-jurisdiction acceptability of data packages and assessments. Environmental and health advocacy groups would also like to see a national standard, albeit a much more prescriptive and data intensive one than industry envisions.

All of this plays out as the anticipation grows for Senator Lautenberg to reintroduce an updated version of his Kid Safe Chemical Act. At this point, I think all stakeholders want to see something on the table that can be debated.

Chemical Review - The Wal-Mart Factor, Redux

Those who have been following the ins and outs of chemical control reform know that one of the factors that have led to the current efforts is something I call the "Wal-Mart Factor." Wal-Mart's revenues and outreach surpasses the economic influence of many countries. So when Wal-Mart talks, lots of people listen. And Wal-Mart is talking about chemical control, albeit in a slightly softer voice than in the past.

In 2006 Wal-Mart launched its Chemical Intensive Products Network program, which was intended to identify 20 chemicals that it would work to eliminate from products sold at its stores. And if companies have to reformulate their products to meet Wal-Mart's standards, they will reformulate for everyone. Well, that program flattened out a bit once the real world hit the theory, and Wal-Mart shifted toward collaboration with suppliers to encourage safer and more sustainable alternatives rather than an outright banning of anything it put on its list.

Wal-Mart is now moving completely away from the pass-fail approach, though they will continue to work toward more sustainable products. Last year it introduced a screening program called GreenWERCS that will use a broad array of criteria to identify risks. Suppliers can simply enter the chemicals present in their products and GreenWERCS will evaluate them based these aggregated criteria. The goal is to help suppliers identify more sustainable ingredients to use in their products. Not quite the "if it's bad, it's gone" approach of 2006, but still in the right direction.

In the end Wal-Mart is shooting for a "sustainability index," which will be some measure that can be readily communicated to the public to identify sustainable products. Presumably there would be some number system or logo that could be branded on the product to let consumers make better choices.