Reforming TSCA - Protecting the Public from Chemicals and Uncertainty

TSCA reform. You've probably heard about it. After all, we've been talking about it for nearly 40 years. And yet nothing has changed. With Senator David Vitter (R-LA) announcing that he will run for Governor of Louisiana in 2015, the current attempt to reform TSCA may or may not actually happen.

For those new to the idea, TSCA is the Toxic Substances Control Act. It was passed in 1976 to fill in a massive gap in our nation's regulatory framework. TSCA requires that new chemicals undergo a review prior to being manufactured for the market. However, very little data are required to be submitted, and no health and safety data are required. Therefore, that "review" must be done by the Environmental Protection Agency (EPA) using a series of models to predict the potential for toxicity, environmental fate, degradation, and virtually all the other key properties. EPA then models potential exposure to workers, the general public, fish, and animals and plants. If EPA thinks there may be a problem (based on all of this modeling and very little data), they can ask for additional data or deny the application.

Oh, and the EPA must do all this within 90 days or the new chemical can be manufactured by default.


Given the large number of new chemicals offered every year (between 1000 and 2000), the lack of substantive data in many cases, and the short time EPA has to make a decision, it isn't surprising that the vast majority of new chemicals are allowed to be manufactured.

For the roughly 63,000 existing chemicals already on the market when TSCA was passed, the law simply grandfathered those chemicals onto a TSCA Inventory. The assumption was that these chemicals must be safe because they were already being used. With the exception of a several chemicals that were later shown to have very high hazard, very little has been done to evaluate the risk from these existing chemicals.

Most chemicals are safe. That should be made clear. We use chemicals dozens of times in every day life. They are in our shampoo, our soaps, our kitchen cleaning solutions, the keyboards we type on, and the monitors we stare at all day long. Without chemicals, life as we know it would be something none of us has ever known. And most of those chemicals can be used safely, assuming we use them as they are designed.

On the other hand, maybe some can't. Enough cases have arisen of chemicals suddenly being discovered to be hazardous under normal use conditions to confirm that sometimes chemicals are not safe.

So how do we know?

In future posts I'll take a look at the two core issues - ensuring safety and communicating that safety to the public. I'll also take a look at the current bill in Congress that attempts to reform TSCA. The Chemical Safety Improvement Act (CSIA) is a bipartisan measure that presents the best opportunity for improving the control of chemicals in the United States. It's not a perfect bill - far from it. But it is passable and does make some needed changes. Can Congress drop the partisan games long enough to pass on something they largely agree on? Will Senator Vitter's gubernatorial bid help or hurt the cause? Can it be done before the 2014 mid-term congressional elections, the result of which will almost certainly doom industry to an onslaught of advocacy group attacks and a hodgepodge of state-based regulation?

What do you think?

Senate Committee Hearing on TSCA Reform Wednesday July 31 2013

The Senate Environment and Public Work Committee, led by Senator Barbara Boxer, is holding a hearing on TSCA Reform Wednesday, July 31, 2013. Starting at 9:30 am EDT, the hearing will be held live in the 406 Dirksen Senate Building hearing room. A live webcast can be viewed when the hearing begins. The purpose of the hearing: “Strengthening Public Health Protections by Addressing Toxic Chemical Threats.” Mainly it is a mechanism for EPW Chair Boxer to address her concerns related to the bipartisan Safe Chemicals Improvement Act bill introduced by the late Senator Frank Lautenberg and Senator David Vitter. The bipartisan bill came as a surprise only a month after Lautenberg had reintroduced his Safe Chemicals Act bill. Boxer called the hearing in an effort to ensure that industry had not unduly influenced the ailing Lautenberg and gotten a death-bed commitment for an industry-friendly bill that is dramatically different than Lautenberg's own bill. Other concerns to be addressed with be the preemption provisions, which the state of California (and other states) are concerned will block any state action on toxic chemicals even if EPA does not take sufficient action to protect human health and the public. A long list of witnesses have been identified: Panel 1 Mr. Michael A. Troncoso Senior Counsel Office of the Attorney General, California Mr. H. Michael Dorsey Chief, Homeland Security and Emergency Response West Virginia Department of Environmental Protection Mr. Ken Zarker Manager, Pollution Prevention & Regulatory Assistance Section Washington State Department of Ecology Panel 2 Mr. Daniel Rosenberg Senior Attorney Natural Resource Defense Council Mr. Thomas McGarity Professor of Law University of Texas at Austin Ms. Linda Fisher Vice President of Safety, Health and Environment and Chief Sustainability Officer DuPont Mr. Stephen A. Owens of Counsel, Squire Sanders, LLP Ms. Linda Reinstein Executive Director and Cofounder Asbestos Disease Awareness Organization Ms. Robin Greenwald of Counsel Weitz & Luzxenberg Mr. Mark N. Duvall Principal Beveridge & Diamond, PC Mr. Ken Cook President and Co-founder Environmental Working Group Panel 3 Ms. Nancy Buermeyer Senior Policy Strategist Breast Cancer Fund Ms. Susan Vickers, RSM Vice President of Community Health Dignity Health Ms. Mauren F. Gorsen, Esq. Partner Alston + Bird, LLP Dr. Jonathan Borak, MD, DABT Clinical Professor of Epidemiology and Public Health Clinical Professor of Medicine Yale School of Medicine Mr. Cecil Corbin-Mark Deputy Director/Director of Policy Initiatives We Act for Environmental Justice Ms. Dorothy Felix President Mossville Environmental Action Now Mr. Andrew R. Hackman Vice President of Government Affairs Toy Industry Association, Inc. Ms. Ansje Miller Eastern States Director Center for Environmental Health For more information and the link to the live feed, go to the EPW hearing page.			3

Lautenberg to push TSCA reform bill

The Philadelphia Inquirer is reporting that Senator Frank Lautenberg will try once again try to reform the nearly four decade old Toxic Substances Control Act. According to an article by Sandy Bauers published online, Lautenberg plans to introduce his newest version of the Safe Chemicals Act on Wednesday.

The Democratic Senator from New Jersey has been trying since 2005 to get passage of a TSCA reform bill. The most recent attempt in 2012 made it out of Committee on a partisan vote, only to die from lack of interest in the full Senate. Recently Republican Senator David Vitter has indicated that he was working on an alternative, chemical industry-backed, bill.

The Bauers article can be read here.

The announcement is now on Senator Lautenberg's site.

Full text of the 2013 bill is here.

A summary is here.

Safer Chemicals Healthy Families, an NGO, says the bill "much-needed legislation would protect Americans from unsafe chemicals."

Another NGO, the Environmental Working Group, also favors the Lautenberg bill.

A trade association, the American Chemistry Council, thanked Senator Lautenberg for his commitment, but indicated it was encouraged by "efforts in the Senate led by Senator David Vitter (R-LA) to develop a new proposal." Senator Vitter is expected by some to introduce a competing "industry" bill later in the month.

Another trade association, the Society of Chemical Manufacturers and Affiliates (SOCMA) issued a press release today that did not mention Lautenberg's bill specifically, but called for a more piecemeal approach through "bipartisan cooperation."

According to the summary from Senator Lautenberg's office, the bill is identical to the one passed out of Committee last summer. That bill was never taken up for debate during the limited remaining legislative calendar during the election period. By reintroducing the bill Senator Lautenberg hopes to rejuvenate the discussion of much needed TSCA reform. Given the current political climate it is likely that no action will be taken until Senator Vitter's competing bill is offered.

Industry Groups Say Safe Chemical Act Does Not Include Republican Input

On Monday the Environmental Defense Fund issued a summary of the main provisions of the Safe Chemicals Act and how they "fulfill every detail" of the Industry "10 Principles" for TSCA reform as put forth by the American Chemistry Council. On Tuesday Industry addressed a letter to the Senate disagreeing with that contention, though not specifically rebutting it. The letter was signed by 69 chemical organizations representing "each step in the supply chain."

The basic premise of the letter is that Republican member input was not fully considered in the present Safe Chemicals Act passed out of the Environment and Public Works Committee late last month. The letter notes that "attempts have been made to characterize the current version of S. 847 as a compromise bill that could gain the support of Republicans and industry." The letter goes on to say that "this is not the case for the bill in its current form."

The industry letter confirms that industry "wholeheartedly support the continuation of a bipartisan process to discuss the right concepts needed in legislation to effectively reform the [EPA's] ability to regulate chemicals." Industry does not, however, believe that the current bill accomplishes this goal.

Now that the bill has been passed out of Committee it becomes eligible for a full debate of its merits on the Senate floor by all members of the Senate. Democrats in the Senate have indicated that they are more than willing to bring the bill up for debate, so it would seem that Industry and their Republican representatives in the Senate will have the opportunity to publicly present their views on what they agree with in the bill and what they do not agree with, along with solutions. Given that all stakeholders - Industry, NGOs, public health and environmental advocacy groups, parent groups, EPA and others - have agreed that TSCA needs to be reformed, it seems that the Safe Chemicals Act bill gives all parties the opportunity to move toward that goal.

The EDF comparison between the Safe Chemical Act and ACC "10 principles" can be viewed here.

The ACC "10 principles" document can be viewed here.

Further information on ACC's position on TSCA reform can be viewed on their web site.

New Safe Chemicals Act "fulfills every detail" of Industry's principles for moderning TSCA

Dr. Richard Denison, Senior Scientist at the Environmental Defense Fund (EDF), has "developed a detailed 8-page table that shows, side by side, the principles and the new version of the Safe Chemicals Act, with citations to each specific provision of the Act." The principles in question are the "10 Principles for Modernizing TSCA" issued by the American Chemistry Council (ACC), the major trade association for the chemical industry.

According to Dr. Denison, "the alignment is strong" between the "10 Principles" and the provisions in the Safe Chemicals Act proposed by Senator Frank Lautenberg and passed by vote out of committee for discussion and vote in the full Senate. The ACC statement issued following the committee vote indicated that "after a cursory review, we believe the bill is still fundamentally flawed in many critical areas." However, Dr. Denison notes that:

The changes made to the Safe Chemicals Act specifically reflected the input received from all stakeholders, including the converging views that have emerged from several industry-NGO dialogues held over the past 18 months.

He thus reaches the conclusion that "ACC’s complaints are more about politics than about substance."

Denison has provided a PDF link to his side-by-side table that details his comparison of the bill's provisions versus the ACC "10 Principles."


The full blog article by Dr. Denison can be read here.

Senator Lautenberg Calls for Senate Vote on Safe Chemicals Act

Senator Frank Lautenberg (D-NJ) is calling for a vote in the full Senate on his Safe Chemicals Act. Originally introduced April 14, 2011, the bill was passed out of the Environment and Public Works Committee last week. The bill is "designed to protect Americans from dangerous toxic chemicals that are found in everyday consumer products." Lautenberg now wants the bill to get a vote in the Senate.

A 174-page Amendment that documents all of the changes to the original bill (S.847) was released by the Committee. The committee also issued a short summary highlighting the key changes. These changes comprehensively alter the bill from its original "NGO-friendly" form to its now very "Industry-friendly" form. Still, Lautenberg has not been able to get any Republican to join the 25 Democratic co-sponsors of the bill. Lautenberg called on his fellow Senators to put the bill to a vote,  "either for or against." He noted that "families deserve to know" what Senators from both sides of the aisle "are thinking as we go through this process."





After languishing for nearly one and half years after its introduction, the bill took on new emphasis following an investigative reporting series by the Chicago Tribune. The Tribune reported that there had been collusion between the chemical industry and the tobacco industry to overstate the effectiveness of flame retardants and understate the health risks. A rather contentious hearing was held the day before the Committee vote, during which Senator Boxer went so far as to suggest one of the witnesses should "take a course in ethics."

It is clear that Lautenberg does not expect the bill to pass a full Senate vote since it would need to reach 60 votes to invoke cloture just to bring it to the floor for a real vote. With only 53 Democrats and Independents possibly voting for the bill and all 47 Republicans likely voting against it no matter what changes are made in debate, the bill is essentially dead on arrival. But he does feel that after 7 years of introducing bills and making substantive changes that make the bill more industry-friendly, the public should know what each Senator believes about protecting human health and the environment.

EPA Identifies Substitutes for Toxic Flame Retardant Chemical

The USEPA has released a draft report on alternatives to the "toxic flame retardant chemical known as decabromodiphenyl ether (decaBDE)." Acting Assistant Administrator Jim Jones had mentioned at a Senate hearing last week that the Agency was in the final steps of eliminating DecaBDE from products. This new action is part of EPA's Design for the Environment (DfE) program. The draft report being released "profiles the environmental and human health hazards on 30 alternatives to decaBDE, which will be phased out of production by December 2013."

EPA notes that "the alternatives to decaBDE characterized in the report are already on the market and will be used increasingly as decaBDE is phased out." EPA also notes that while overall the alternatives are considered good replacements for decaBDE, they have "differing hazard characteristics and are associated with trade-offs."

More information can be found in EPA's news release.

The full 812-page alternatives assessment for decaBDE can be viewed as a PDF here.

More information about the flame retardants alternatives project can be found here.

More information on EPA's DfE program can be found here.

Senate Passes Safe Chemicals Act out of Committee

The Senate committee charged with reforming the 1976 Toxic Substances Control Act (TSCA) has voted to send the bill proposed by Senator Frank Lautenberg to the full Senate for open debate and a possible vote. As expected after Tuesday's contentious hearing, the committee vote split along party lines with the ten Democrats voting for it and the eight Republicans voting against it.

Republicans argued that the vote on the bill introduced one and a half years ago was premature, and that there had not been time for the "bipartisan" discussions to reach fruition. Democrats countered that the bill had been substantially revised many times following dozens of hearings, stakeholder meetings, and private consultations with the Republican members. Senators Boxer and Lautenberg felt that it was important to get everyone's views out in the open so that their constituents could make judgments on whether to support the bill.

Indeed, the committee issued a 174-page Amendment that documents all of the changes to the original bill (S.847). They also issued a short summary highlighting the key changes.

Many of the changes incorporate the concerns of industry and the Republican minority. For example, the original bill introduced in 2005 would have required all chemical manufacturers to undertake a REACH-style data development in which all chemicals would need a substantial amount of health and safety data to be submitted prior to manufacture or in order to keep existing chemicals on the market. To incorporate industry concerns, the version passed by the committee yesterday "better focuses resources on priority chemicals" while continuing to require EPA to do most of the work of determining if a chemical is not safe. Existing chemicals would be evaluated in batches and screened through a prioritization process, then undergo safety determinations in order of priority.

The changes also require new information and testing "only when necessary." Data could be provided through means other than new testing when appropriate and defensible, for example, using QSARs, read-across, and non-animal studies.

Confidential business information (CBI) provisions have also been revamped to address industry concerns, and the new bill "better balances protection" of CBI versus the public's right to know about the chemicals to which they may be exposed.

As noted yesterday, it is highly unlikely that the Safe Chemicals Act will ever be passed by the Senate during this session of Congress, and even if it did come to a vote would likely never meet the 60-vote supermajority needed to even get to the actual up or down vote on the bill itself. And even if it somehow got that far, the House is highly unlikely to consider any bill at all. Facing this uphill battle the sponsors of the bill (Lautenberg and 21-cosponsors, all Democrats) felt it necessary to move the bill forward to all open expression of the conflicting views.

Information on the bill can be reviewed on the Thomas Library of Congress site.

Senate Moves TSCA Bill to Vote After Contentious Hearing

[Update: The Safe Chemicals Act has been approved by vote of the Committee on July 25, 2012] As noted yesterday, the Senate held a hearing on "EPA's authorities to control toxic chemicals." The hearing built on many previous hearings to gather information relevant to the reform of the TSCA chemical control law.  The hearing began fairly benignly but ended rather contentiously, with Senators Barbara Boxer (D-CA) and Frank Lautenberg (D-NJ) preparing for a markup of the Safe Chemicals Act bill today, July 25, 2012.

The hearing ostensibly was in response to an investigative series published recently by the Chicago Tribune. The Tribune series argued that "two powerful chemical industries - Big tobacco and chemical manufacturers - waged deceptive campaigns that led to the proliferation" of flame retardant chemicals such as the PBDEs. Witnesses during the hearing included Dr. Heather Stapleton, an expert on flame retardant chemicals at Duke University, and Marshall Moore, Director of Technology, Advocacy and Marketing at Chemtura, a manufacturer of PBDEs and one of the companies specifically identified by the Chicago Tribune.

In their opening statements the Senators offered reiterations of their usual positions. Democrats focused on the toxicity, persistence and bioaccumulation of PBDEs in particular and chemicals in general. Republicans, in particular Senators James Inhofe (R-OK) and David Vitter (R-LA), expressed their disappointment that the Democratic majority of the committee was planning to bring Lautenberg's Safe Chemical Act bill to markup. Republicans felt that this meant the end of the "bipartisan" discussions in which Democratic and Republican members of the committee and their staffs had engaged for the year and a half since the introduction of Lautenberg's bill.

Democrats countered that the "bipartisan" discussions were going nowhere and it was time to get Republican views out in the open with a markup and committee vote on the bill. Lautenberg reminded his colleagues that he first introduced a version of the Safe Chemicals Act in 2005 and that over the last seven years there had been dozens of hearings, meetings, and consultations with Republicans on the best way to reform TSCA. All stakeholders have agreed publicly many times that TSCA is in dire need of reform, a position EPA acting Assistant Administrator Jim Jones reiterated in his testimony. Indeed, Lautenberg's Safe Chemicals Act bill has clearly migrated from a more NGO-approved (all data for all chemicals) approach in the original to a more Industry-friendly (prioritization) approach in the current version. The markup is an attempt by Democrats to put the Republican position on record given that passage of a TSCA reform bill is highly unlikely in this Congress, and perhaps impossible in the next Congress depending on the results of this fall's election.

Democrats were clearly frustrated with the Republicans during the hearing. This became especially evident during the second panel in which Senator Boxer repeatedly made it clear which witnesses were called by the majority party (Democrats) and which were called by the minority party (Republicans). Boxer also repeatedly praised the courage of mother and former Maine House leader Hannah Pingree, who had said during questioning that "the chemical industry does not always tell us the truth." Boxer similarly praised the work of fireman Tony Stefani, who heads a Firefighters Cancer Prevention Foundation, which he started after he and his fellow firefighters were found to have higher incidences of the kind of cancers that he claims "are usually seen in workers in chemical manufacturing."

In contrast, Boxer several times addressed chemical manufacturing representative Marshall Moore in ways that can euphemistically described as "direct." She told Moore that "he needs to apologize" for "grossly distorting" a study on which he relied for demonstrating effectiveness and safety of flame retardant chemicals. Boxer also told Moore that "take a course in ethics" because the industry had set up a "phony fire safety group" (based on the charges in the Tribune series). Moore was remarkably calm and respectful given Boxer's direct accusations and insisted that his company and others had conducted and provided to EPA dozens of studies to aid the assessment.


The hearing demonstrated that TSCA reform, despite the repeated public assurances by all stakeholders that modernization was necessary and desirable, is likely not going to happen. As noted, while the Republicans expressed their disappointment that the bill will go to markup and probably to a committee vote, Democrats expressed their continued desire to work on a bipartisan bill, which they now believe can better be accomplished by an open debate on the Senate floor where each individual Senator would be able to put their views on record.

Of course, even in the unlikely event that a bill could be passed in the Senate (virtually all bills now must pass 60 votes for cloture before they can even make it to the floor for a vote), there is essentially no chance that the Republican-controlled House would even take up a companion bill.


More information and downloads of the testimony can be found on the committee hearing page.

TODAY - Senate Hearing on Exposures to Toxic Chemicals

There will be a Senate hearing today, Tuesday, July 24, 2012 to hear witnesses on the topic "Oversight on EPA Authorities to Control Exposures to Toxic Chemicals." The hearing is being held by the Full Senate Environment and Public Works Committee and its Subcommittee on Superfund, Toxics, and Environmental Health. The subcommittee is chaired by Senator Frank Lautenberg (D-NJ) who has been working for several years to modernize the Toxic Substances Control Act (TSCA) originally passed in 1976.

Lautenberg and other Democratic members of the committee are planning a markup and vote on his Safe Chemicals Act bill on Wednesday. Republican members immediately balked at the idea, noting that they were not given any warning of the vote. At the previous hearing by this subcommittee many months ago, Democrats had practically begged Republicans and industry to "give us a bill," i.e., rather than merely say the current bill was inadequate, actually propose a bill that Republicans and industry could live with given that all parties claim to want a workable modernization of TSCA. Republicans and industry declined to do so.

While the Safe Chemicals Act - TSCA reform - has been largely ignored during this election year, it has received renewed interest lately as the result of a Chicago Tribune investigative series that accused the chemical industry of misleading the public and regulators about both the effectiveness and safety of brominated flame retardants.

Today's hearing begins at 10:00 am ET in room 406 of the Dirksen Senate building. The hearing will be webcast. The full agenda and list of witnesses is below:

Opening Remarks

Panel 1

The Honorable Jim Jones Acting Assistant Administrator for the Office of Chemical Safety and Pollution Prevention U.S. Environmental Protection Agency

Panel 2

Hannah Pingree Mother, Former Speaker of the Maine House of Representatives

Dr. Heather M. Stapelton Assistant Professor of Environmental Chemistry, Environment Sciences & Policy, Nicholas School of the Environment Duke University

Marshall Moore Director, Technology, Advocacy and Marketing Great Lakes Solutions, A Chemtura Business

William K. Rawson Partner, Chair, Environment, Land & Resources Department Latham & Watkins LLP

Tony Stefani President, Founder San Francisco Firefighters Cancer Prevention Foundation

 

Poll Shows Most Americans Want to Update Chemical Control Law

A new poll conducted by Public Opinion Strategies, a leading Republican polling firm, shows that "voters are concerned about the effects of exposure to toxic chemicals in day to day life." The poll also shows that "most voters support 'stricter regulation of chemicals produced and used in everyday products.'"

POS conducted the national telephone survey of 800 registered voters on June 25-27, 2012. The overall margin of error is +3.46%. Interviews were distributed proportionally throughout the country. More information on the poll results and methods can be found here.

Poll results show that 77% of respondents support specific legislation to reform the Toxic Substances Control Act (TSCA), the law passed in 1976 for which all stakeholders (industry, NGOs, EPA, health and environmental advocates) agree needs to be modernized. Support for reform of the law was "wide-spread and broad-based," i.e., large majorities of all demographics surveyed agreed that the law was in need of updating.

POS concluded that "U.S. voters overwhelmingly support reform to regulations overseeing chemicals produced and used in everyday products, particularly when provided with specifics about what the reform might entail." Even when robust arguments on both sides of the issue were presented, "voters continue to side with supporters of reform."

TSCA reform has been the subject of many attempts by Senator Frank Lautenberg (D-NJ) and others to introduce legislation. Lautenberg's most recent effort, the Safe Chemicals Act, has languished in Committee without action. This might change this week, however, as Lautenberg says he expects to bring the bill to markup this week, which may lead to a Committee vote as early as Wednesday.

Meanwhile, the subcommittee and full committee of the Senate Environment and Public Works Committee has scheduled a hearing for Tuesday, July 24th to discuss Congressional oversight of EPA authorities related to TSCA. Of specific interest is a recent investigative series by the Chicago Tribune that suggested the brominated flame retardant industry had overstated benefits and understated risks of a class of flame retardants called PBDEs. This builds on a hearing held recently by Senator Dick Durbin (D-IL).

Senator Durbin Holds Hearing on Brominated Flame Retardants

Senator Dick Durbin (D-IL) held a hearing on Tuesday, July 17, 2012 regarding the question:

AreConsumers Adequately Protected from Flammability of Upholstered Furniture?  Hearing on the Effectiveness of FurnitureFlammability Standards and Flame Retardant Chemicals.

Durbin's concern stems from a recent Chicago Tribune investigative series that suggested the flame retardant industry had misled regulators on both the effectiveness and safety of a class of brominated flame retardants called PBDEs. The Senator is a strong supporter of overhauling the 26-year old TSCA law and is a co-sponsor of the Safe Chemicals Act introduced by Senator Frank Lautenberg (D-NJ).


Scheduled witnesses at the July 17th hearing were:

 

Panel I

·        The Honorable Inez Tenenbaum, Chairman, Consumer Product Safety Commission.

·        James J. Jones, Acting Assistant Administrator, Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency.

Panel II

·        August (Gus) Schaefer, Sr., Vice President and Chief Safety Officer, Underwriters Laboratories, Inc.

·        Andy Counts, CEO, American Home Furnishings Alliance.

·        Peter Van Dorpe, Chief of the Training Division for Chicago Fire Department.

More information on the hearing can be found here.

Lautenberg Leads Bipartisan Group of 26 Senators in Calling for Reform of Toxic Chemicals Law

Senator Frank Lautenberg (D-NJ) and 25 other Senators, including three Republicans, wrote a letter to EPA Administrator Lisa Jackson yesterday to "express our support for...actions to address a class of flame retardant chemicals called polybrominated diphenyl ethers (PBDEs)."  PBDEs are "found in a number of everyday consumer products" and were the subject of a recent Chicago Tribune investigative report that "revealed that flame retardant manufacturers may have misled the public for decades regarding both the risks and efficacy of these chemicals."

As part of its chemical action plan issued in December 2009, EPA proposed several actions under its existing TSCA authority to address the risks of PBDEs and collect additional data for assessment. Some of those actions are in progress while the implementation of others are uncertain given the continuing attempts to cut EPA budgets and limit its use of TSCA authority.  In the letter the Senators "commend the EPA for taking steps to address PBDEs," but acknowledge that Congress must take action to reform the current TSCA law.

Lautenberg introduced his latest version of the Safe Chemical Act this past year but has been unable to move it even to committee debate because no Republicans have offered any support for discussions to take place.  Lautenberg did get three Republican Senators - Olympia Snowe and Susan Collins from Maine and Lisa Murkowski from Alaska - to sign on to this current PBDE letter and has hopes that Republicans will concede to begin debate on TSCA reform.  However, Senator Snowe is retiring at the end of this term and given the unlikelihood of any significant action being undertaken prior to the November elections, it may be that Lautenberg is leaning more on wishful thinking than any actual belief that Republicans will agree to support TSCA reform.

More information can be found on Senator Lautenberg's web page.

The letter can be viewed or downloaded as a PDF here.

Is EPA Ready to Use TSCA Section 6 Again?

Bloomberg BNA is reporting that EPA may be on the verge of pulling out the TSCA Section 6 rulemaking book again, something they haven't touched since 1991 with the failed attempt to regulate asbestos.  The article, penned by long-time Chemical Regulation Reporter writer Pat Rizzuto, notes that the suggestion was made by current Acting Assistant Administrator for Chemical Safety and Pollution Prevention Jim Jones.

According to Rizzuto, Jones said "We will try and exercise some muscle we have not exercised for decades."

His statements were made at a recent Environmental Council for the States (ECOS) forum.

Use of TSCA Section 6 authority has a high hurdle for EPA, who must demonstrate that the chemical in question poses a significant risk.  Since many existing chemicals often have little health and safety data available to review, and the request for such data requires demonstrating risk (something hard to do without data), the onus of Section 6 has been one of the major driving points for the recent attempts to reform TSCA. 

As has been noted many times here, it seems highly unlikely that Congress will make a serious attempt to pass TSCA reform legislation before the election...despite claims by all stakeholders that they are in favor of modernizing the 36 year old law.  It is perhaps that reality in mind that led to Jim Jones' suggestion - what better way to emphasize the need for TSCA reform than to fail again in using one of its primary authorities?  Perhaps this will give some impetus to Congress to change the law.

And even without Congressional action, maybe, just maybe the EPA can actually address the risks of some chemicals of concern.  As the article notes Jim Jones as saying: "If the chemical is safe, our work will be done."

If it isn't, EPA's work will have just begun.

The Bloomberg BNA article can be read in full here.

Lautenberg Joins "Stroller Brigade" to Push for TSCA Chemical Reform

Senator Frank Lautenberg joined a "stroller brigade" of mothers from 30 states yesterday in support of TSCA reform.  This follows on the heels of a call from Senator Dick Durbin to modernize the 36 year old law.  According to Safer Chemicals Healthy Families, the "National Stroller Brigade builds on 30 local events in support of the Safe Chemicals Act, in locations as diverse as Little Rock and Omaha.  Hundreds of moms – many with children in tow – flew or bused into Washington to deliver 130,000 petition signatures to their Senators."

Lautenberg introduced the Safe Chemicals Act in 2011 and some hearings were held in Congress, but no recent action has taken place and very few people think a bill can be passed during this election year.  Even if the bill did pass in the Senate it is unlikely to be taken up in the Republican-controlled House.  The stroller brigade was designed to try to encourage lawmakers to address the issue.

“If there is one overwhelming message from years of science, it’s that exposure to toxic chemicals early in our lives is responsible for some of the cancer, infertility, and other health problems that affect millions of Americans,” said Andy Igrejas of Safer Chemicals, Healthy Families. “However, Congress has been paralyzed. We’re here to break the gridlock and demand common sense limits on toxic chemicals.”

Lautenberg, Durbin and 14 other co-sponsors of the bill (all Democrats) are trying to get passage during this term.  All parties, including the chemical industry, agree that modernization of TSCA is necessary.  However, industry opposes the current bill. Democrats are frustrated that despite their altering the bill several times to make it more industry-friendly, industry has not sat down with Congressional staff to agree on what features would work for them.  This frustration was palpable during a Senate hearing last year. Industry, on the other hand, feels that the current bill is unworkable and that any TSCA reform bill must essentially start from scratch.

Given that all sides (Government, EPA, NGOs, and Industry) all agree that modernization is necessary, and that substantial reworking of the principles and proposed requirements has occurred as the various bills evolved, it seems that the lack of a successful TSCA reform is due to politics rather than science.

Lautenberg expressed his frustration in his press release:

“It’s shocking that toxic chemicals end up in everyday consumer products, and in our bodies, without anyone proving that they are safe. The stroller brigade is carrying an important message to Congress that we're not going to stand by and let our kids continue to be exposed to chemicals that make them sick.  Concerned moms are the best weapons we have in this fight.  With their help, I will keep advancing the Safe Chemicals Act to reform our broken toxic chemical laws and provide a healthier future for our families.”

Senator Durbin Calls for Passage of Safe Chemicals Act

Illinois Senator Dick Durbin has called upon his colleagues to pass the Safe Chemicals Act, "which would update and modernize the Toxic Substances Control Act of 1976." Durbin calls the 36 year old law “antiquated and ineffective” and desperately in need of reform. TSCA governs the regulation of chemicals in the United States with the goal of protecting human health and the environment.

On his web page Durbin notes that:

“The U.S. EPA, wittingly or unwittingly, has allowed the manufacturers of toxic chemicals to flood American households with substances that abundant scientific evidence finds harmful.  The Chicago Tribune series published this week reveals that flame retardant chemicals added to furniture and other household goods are not only useless, but also toxic for our families – especially young children.  The disturbing truth is that flame retardants are only one example of the many toxic substances that have made their way into American homes as a result of self-serving chemical companies and the weak, ineffective federal law that has regulated chemical safety standards since 1976.  We have to come together on a bipartisan basis to pass the Safe Chemicals Act and provide Illinois families with the basic level of safety they expect.”

The Chicago Tribune series he mentions refers to an investigative journalism series published this month that "uncovered flawed testing, products that don’t work, unscrupulous “experts,” shoddy science and stalled government reform." The reporting focused on

The Safe Chemicals Act bill was introduced by Senator Frank Lautenberg of New Jersey in April 2011 and remains in limbo with no action.  The last hearing was held in November 2011 and expectations are low that it will be taken up for a vote in this election year.  Even if the bill was passed in the Democratically-held Senate there is virtually no chance the Republican House would consider further regulation.  With the potential for the Republican's to gain control of the Senate in addition to holding the House in the fall, it seems unlikely that TSCA reform has much chance of seeing the light of day for many years, if ever.

Senator Durbin's full press release is available here.

The Chicago Tribune series can be found here.

A statement from the NGO Safer Chemicals Healthy Families can be read here.

A related statement from the American Chemistry Council can be read here.

REACH Won't Work for TSCA Reform, Says Industry Based on Indiana Report

The US chemical industry is pointing to a new academic report as proof that the European REACH chemical management system is not a good fit for implementing in the US.  The report from Indiana University comes while Congress has effectively punted on pursuing reform of the 35 year old Toxic Substances Control Act (TSCA). 

The full report, for preparation of which the authors acknowledge receiving "unrestricted financial support from the American Chemistry Council, Dow, and DuPont," presents information about REACH and offers the following five findings:


FINDING #1: U.S. Policymakers Should Consider Simplifications of the REACH program.

FINDING #2: If a REACH-like system is adopted in the United States, more public disclosure of safety-related information and opportunities for public participation should be provided.

FINDING #3: In considering how to streamline REACH for application in the United States, more focus should be on priority-setting based on risk and the opportunity to reduce risks to human health and the environment.

FINDING #4: Since some of the frustration and burden in the early years of REACH implementation has been linked to ambiguity in program design, a REACH-like system in the United States should provide clarification about critical standards, processes, and tools.

FINDING #5: If the United States chooses to adopt a REACH-like system of registration, unnecessary burdens on industry can be lessened by allowing for mutual, cross-Atlantic recognition of registration dossiers.

The full report can be downloaded as a PDF file here.

Senate to Hold TSCA Safe Chemicals Act Hearing This Week

Maybe the idea of TSCA reform isn't quite dead for this Congress.  A hearing will be held on Thursday, November 17, 2011 in the US Senate to examine the Safe Chemicals Act of 2011, a bill introduced early in the year by Democratic Senator Frank Lautenberg.  The hearing, to be chaired by Lautenberg and supported by ranking Republican member James Inhofe, includes both the full and subcommittees of the Senate Environment and Public Works committee (EPW).

The hearing follows on a series of five stakeholder meetings held between EPW staff and both industry and environmental advocacy groups.  It is the first sign in quite a while of potential movement in the seemingly futile attempt to modernize the Toxic Substances Control Act (TSCA).  The lack of movement is despite support for TSCA reform by both industry and advocacy groups.

Scheduled to provide testimony at the hearing are:

Mr. Ted Sturdevant
Director, Department of Ecology
State of Washington

Ms. Charlotte Brody Director of Chemicals, Public Health and Green Chemistry BlueGreen Alliance

Mr. Cal Dooley President and CEO American Chemistry Council

Mr. Robert Matthews McKenna Long & Aldridge

Dr. Richard Denison, Ph.D. Senior Scientist Environmental Defense Fund

More information on the hearing can be found on the EPW web site.

Is TSCA Reform Happening this Fall?

The short answer is, probably not.  But it does appear that Senator Frank Lautenberg's office will be pushing for a markup this fall of the draft bill introduced this past spring.  Lautenberg's "Safe Chemicals Act of 2011" included many industry-friendly changes from the original "Kid Safe Chemical Act" (including no longer mentioning kids in the name).  The bill introduced in April would have required companies to submit "basic hazard and exposure data to quickly determine the risk and assess the need for further testing or restrictions."

Over the summer the staffs of Senators Lautenberg and Inhofe held a series of stakeholder meetings in an effort to find common ground and a path forward.  These meetings included - separately - representatives from NGOs (e.g., Environmental Defense Fund) and industry (e.g., ACC and SOCMA).  Topics for the meetings included defining a "safety standard" and coming up with prioritization schemes that would focus efforts on those chemicals deemed most risky.  In August, EPA proposed such a prioritization scheme, which was countered by an alternative scheme by the American Chemistry Council.

Whether the markup happens or not will depend on the legislative calendar, but historically anything that doesn't get done by this fall will likely not get done during the 2012 election year.  With the initial changes Lautenberg already made and the Democrats' willingness to compromise the grand reform of TSCA for a more industry-friendly reform, the feedback from the stakeholder meetings suggest that any markup will further limit the extent of "modernization" of the 35-year old chemicals law.  Whether you believe that is a good thing or a bad thing may depend on from what perspective you bring to the table.

Senators Lautenberg and Inhofe Staffs Hold Stakeholder Meetings on Safe Chemicals Act of 2011

Way back in April Senator Frank Lautenberg introduced his newest iteration of TSCA reform called the Safe Chemicals Act of 2011.  Last year the Democratic-controlled House took the lead in holding stakeholder meetings to fine tune the 2010 versions of the bill.  With the House controlled by Republicans this year it is left to the 87 year old Lautenberg to initiate stakeholder meetings in the Senate in an attempt to give TSCA reform at least some semblance of movement during the current Congressional term.  Since Republican Senator Inhofe had previously volunteered to work in a bipartisan manner with the Democratic Lautenberg, their staffs have begun meeting with various stakeholders to discuss key issues in the debate.

In June there were separate meetings between staffers and industry and environmental/health advocacy groups (NGOs).  Those meetings primarily dealt with the differing opinions on what should be the "safety standard."  It's unclear at this stage whose viewpoint would win out, but in the past industry has made it clear that the previously proposed standard was unworkable.  At least one more stakeholder meeting with industry representatives was held last week, this time to discuss a prioritization scheme.  A separate meeting with NGOs was due to occur, but it is unclear if it has yet happened.  NGOs had previously pushed to have minimum data sets required for all chemicals, in line with the production volume based tiered requirements currently being compiled by REACH registrants.  This is a fundamental point of difference between the two main groups of stakeholders.


Additional meetings on other key elements of Lautenberg's bill are expected to occur in coming weeks.

Whether a TSCA reform bill can even be taken up for floor discussion in this current Congress is a question mark, though it is safe to say that the likelihood is exceedingly small.  The current contentious environment and uncompromising attitudes of many in the House make passage of any TSCA reform law nearly impossible.  Which means that the EPA must work under the current 35-year old law, the same law that all stakeholders have said is in dire need of modernization.