Summary highlights changes between discussion draft and the formally introduced House TSCA chemical control reform bill

The recently released TSCA reform bill in the house has garnered a lackadaisical response from most stakeholders.  Sure, there have been statements from major stakeholders, but mostly these have been generic and in accordance with pre-scripted talking points.  In large part this is because all parties feel that the bills won't go anywhere in this session of Congress and will have to be reintroduced in some version in the next Congress, which may look quite different than it does now.


Still, this is the time to be working out the differences.  That said, will stakeholders and Congress start the process now, or just take a wait and see attitude until next year.  Until that time, these are the main changes between the "discussion draft" floated by the House in April and the current formal House bill.  Needless to say there are still differences between the House and Senate versions to deal with as well.

Mixtures. The legislation addresses concerns about the burden and workload associated with regulating all mixtures distributed in commerce by clarifying the definition of “mixture,” by allowing the Administrator to group multiple mixtures for treatment under TSCA, and by making the Administrator’s authority to regulate mixtures discretionary in all cases.

Safety standard. The legislation incorporates suggestions for making the safety standard more workable by modifying the standard to be based on the intended uses of the substance only, while still providing the Administrator authority to consider exposures associated with known or foreseeable uses that are not identified as intended uses.

New Uses and New Chemicals. To increase workability and support innovation, the scope of the pre-manufacture notice requirement for new mixtures and new uses has been changed significantly. Under the legislation, no new use of a chemical substance or mixture will require pre-manufacture notification unless the chemical substance or mixture has already received a safety standard determination. New mixtures will also be able to enter the market without satisfying the requirements of Section 5 of TSCA, as will chemical substances exempted because of their intrinsic properties and chemical substances approved as safer alternatives.

Minimum Data Set (MDS). The legislation provides more detail about the components of the MDS and improves the workability of the submission requirements by staggering submissions based on production volume. The bill also provides greater flexibility to the Administrator in determining the penalties for a failure to meet the requirements of a test rule or order.

Confidential Business Information (CBI). The legislation reduces the burden of reviewing requests for confidential treatment of information by requiring the Administrator to review only a representative sample of confidentiality designations and imposing penalties for wrongful designation. The legislation also responds to concerns by allowing for renewal of designations.

Penalties. The legislation provides greater flexibility to the Administrator in determining the penalties for violations committed by an individual manufacturer or processor to avoid unnecessary commercial disruptions.


Exemptions Based on Intrinsic Properties. The legislation responds to concerns about the burden on the Environmental Protection Agency to evaluate chemical substances known to be safe by creating a new exemption from core requirements of the Act for chemical substances or mixtures that have been determined by the Administrator to be safe based on their intrinsic properties.

Safer Alternatives and Green Chemistry and Engineering. This legislation improves and clarifies the process and requirements for approval of safer alternatives to existing chemical substances and mixtures. The legislation also requires the Administrator to promote and support green chemistry and engineering research and to establish a green chemistry workforce education and training program.

International Cooperation and Agreements. This legislation clarifies the obligation of the Administrator to cooperate in international efforts on chemical safety. The bill clarifies and improves the procedures to be implemented if and when the United States becomes a party to designated international agreements on the regulation of chemical substances and mixtures, to ensure that U.S. efforts are consistent with applicable obligations under those agreements.

New design for The Dake Page

Okay, I'm working on a new design template for The Dake Page. 

See, for example, the link tools below. You can email the article to someone you think would find it interesting.  You can also tweet it to your Twitter account or share it on your Facebook...or link to your blog or even Google buzz it.

Let me know if the new design is better...or worse...or the same.

Chemical Insecurity? USPIRG seems to think so in new report

The U.S. Public Interest Research Group has been around for a long time, though perhaps doesn't roll off the tongue (or garner as much publicity) as well Greenpeace and PETA.  But yesterday they released a report that identifies "14 chemical companies that endanger the most Americans in the event of a chemical release."  The report called "Chemical Insecurity: America's most dangerous companies and the multimillion dollar campaign against common sense solutions," pulls no punches as it names names...or at least those names that it believes have been lobbying hard against passage of new laws to change security practices at the nations chemical manufacturing facilities.  The most recent bills were introduced recently by Senator Frank Lautenberg of New Jersey, though passage seems unlikely in this Congress.

According to USPIRG, the key findings of the report include:

• The fourteen companies with the most people in the danger zones in the event of an accident or attack on one of their facilities are: Clorox, Kuehne Chemical, JCI Jones, KIK Custom Products, DuPont, PVS Chemicals, Olin, DX Holding, Solvay, Valero, Occidental Petroleum, Honeywell, Dow Chemical, and Sunoco..

• The Clorox Company, Kuehne Chemical, and JCI Jones Chemical each own facilities that together put more than 12 million people at risk.

• These fourteen companies and their affiliated trade associations spent $69,286,198 lobbying the committees with jurisdiction over chemical security legislation in 2008 and 2009—Energy and Commerce and Homeland Security in the House, and Environment and Public Works and Homeland Security and Government Oversight in the Senate.

• The political action committees (PACs) of these fourteen companies and the PACs of their affiliated trade associations gave $2,187,868 in the 2008 election cycle and the 2010 cycle to date directly to the campaigns of members of the committees of jurisdiction over chemical security legislation.

• These fourteen companies and their affiliated trade associations employ 20 ‘revolving door’ lobbyists who previously staffed the committees of jurisdiction over chemical security and toxics before becoming lobbyists on those same issues.

EPA test results show eight oil dispersants are all about the same toxicity

Soon after the Deepwater Horizon rig exploded into flames and sunk more than three months ago, a chemical called Corexit 9500A was used to disperse the oil. That didn't mean it was gone, just spread out in the water column more so that it is 1) less noticeable, and 2) has a better chance to degrade or to simply dilute further away.  But many questioned whether the dispersant chemical itself wasn't a danger to aquatic wildlife.


EPA has been testing Corexit and seven other dispersant chemicals to see if any substitutes are less toxic.  Well, it turns out they are all pretty much the same level of toxicity when mixed with Louisiana Sweet Crude Oil.  According to EPA, "these results confirm that the dispersant used in response to the oil spill in the gulf, Corexit 9500A, when mixed with oil, is generally no more or less toxic than mixtures with the other available alternatives. The results also indicate that dispersant-oil mixtures are generally no more toxic to the aquatic test species than oil alone."

Some have suggested that the fact EPA had to do testing in the first place, i.e., didn't already have the toxicity data for these chemicals, demonstrates that the Toxic Substances Control Act (TSCA) is totally ineffectual.  The 63,000 or so existing chemicals that were grandfathered onto the TSCA Inventory over 30 years ago had no testing done at the time and only the most high volume ones produced during a certain period have had extensive data gathered on them.  New chemicals undergo a rigorous review by EPA, but based almost entirely on computer models and comparisons to chemicals of similar structure.  Most new chemical notifications include no toxicity testing data, and none is required under the current law unless EPA can show the likelihood of sufficient harm (which is hard to do when you have no data on which to base an assessment of harm).


Congress has started its August recess, after which they will focus mostly on trying to get reelected.  So it looks like next year for TSCA reform.

EPA Moves Forward with Chemical Action Plans

Last fall EPA Administrator Lisa Jackson and OPPTS chief Steve Owens promised that while Congress debated TSCA reform, the EPA would move forward with what they called "Action Plans."  EPA then released five action plans in December 2009, with the idea that they would be releasing about 4 more per quarter.  They have slipped from that idea, but are just about ready to issue a couple of more.

Several months ago, in the spring, EPA sent two action plans to the Office of Management and Budget (OMB), as is policy for any activities with potentially significant impacts on business.  On Monday OMB finally approved both action plans, one for nonylphenol and its ethoxylates and the other for the brominated flame retardant, hexabromocyclododecane (HBCD).

So expect EPA to release the two plans shortly and post them on their web site.  Both plans will likely contain provisions similar to the five previous plans, including consideration of the use of a series of existing TSCA rulemaking authorities. 

Meanwhile, EPA has also been working three additional test plans for siloxanes, benzidine dyes, and diisocyanates.  No word yet on the schedule for those, which also will have to go through OMB review.

NGO Reaction to the House Toxic Chemicals Safety Act of 2010

Last week I gave some initial industry reactions to the formal introduction of the House version of the Toxic Chemicals Safety Act, i.e., the TSCA reform bill.  I've missed a few days but today will jump back in with some of the key NGO reactions.

Testifying at the hearing on July 29th was Richard Denison, lead toxicologist at the Environmental Defense Fund.  Dr. Denison spoke on behalf of both EDF and the EDF-led Safer Chemicals, Healthy Families Coalition. Not surprisingly Denison was very supportive of the bill, at least the promise of the bill, and emphasized that it was critical that the bill move forward in this Congress.  That seems unlikely given that the actual legislative days left in session before the election are few.  Also, while he was supportive of the bill and appreciative of industry's claims of support, he posted in a rather incredulous sounding blog on the EDF site questioning "should we continue to take the chemical industry at its word when it insists it's still for TSCA reform."


Environmental Working Group President Ken Cook was another witness at the hearing, and he too was very supportive of the bill.  He "called on Congress...to pass tough new legislation to repair a “broken toxic chemicals policy” that is currently so weak “the American public has lost confidence that the products they are using, the chemicals they are being exposed to, are safe.”"  However, Cook also took exception in his blog post with what he saw as less then credible support by industry.  He also felt that in the opening comments were largely to "set the contrary theme voiced by a number of Republicans, scoring the bill with words including “cumbersome,” “unworkable,” “ineffective,” and “overly broad.”  The word "jobs" (as in, chemical reform would hurt jobs) was also a common term used by Republicans and also by several Democrats (e.g., Rep. Dingell of the hard hit state of Michigan).

Dr Mark Mitchell, President of the Connecticut Coalition for Environmental Justice also voiced support for the bill.  Mitchell was most emphatic that any new chemical standards must be stringent enough to protect the public and vulnerable populations, and felt that a “reasonable certainty of no harm” would accomplish this goal.  He also noted that “in its current state," the bill "will go far in addressing environmental justice issues with chemical policy.”

With the August recess about to start, we'll see what happens between now and the end of the year on this and the Senate bill.  More than likely they will have to be reintroduced next year.

Toxic Chemicals Safety Act Hearing TODAY in House (PLUS, A List of Key Changes from Discussion Draft)

A reminder that today, July 29th beginning at 10 am ET there is a hearing of the Subcommittee on Commerce, Trade, and Consumer Protection on H.R. 5820, the “Toxic Chemicals Safety Act of 2010.” The "legislation would amend the Toxic Substances Control Act of 1976 to ensure that the public and the environment are protected from risks resulting from chemical exposure."

The invited witnesses at today's hearing include:

• Steve Owens, Assistant Administrator, Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency
• Richard Denison, Ph.D., Senior Scientist, Environmental Defense Fund
• Calvin M. Dooley, President and Chief Executive Officer, American Chemistry Council
• Howard Williams, Vice President, Construction Specialties, Inc.
• Mark Mitchell, M.D., M.P.H., President, Connecticut Coalition for Environmental Justice
• Beth Bosley, Society of Chemical Manufacturers and Affiliates, Inc.
• Ken Cook, President, Environmental Working Group

Most of these witnesses have testified before in the various House and Senate hearings on TSCA reform over the last 18 months.


A briefing memo, PDFs of the proposed bill, and "letters sent to witnesses to explain technical corrections" are all available on the Subcommittee hearing page. The "technical corrections" were to remove four words inadvertently included in the bill that should have been deleted. 

Most helpful is a brief (2-page) document that highlight "changes made to the discussion draft" first provided in April.  The changes include:

- Clarification of what they mean by "mixtures"
- Incorporation of suggestions related to the proposed "safety standard" to make it more workable
- Significant changes to the scope of the premanufacture notice requirement for new mixtures and new uses
- Provision of more detail about the "minimum data set" and the inclusion of a staggered reporting schedule based on production volume
- Creation of an exemption from core requirements for substances and mixtures that have been determined by the EPA to be safe based on intrinsic properties
- Improved process and requirements for approval of safer alternatives

More details after the hearing.

Industry Reaction to the House Toxic Chemicals Safety Act of 2010

As noted in my posts over the last few days, Representatives Waxman and Rush formally introduced their Toxic Chemicals Safety Act of 2010.  Initial reactions have been offered by various stakeholders.  Given that all were released before anyone really had a chance to review the bill, they not unsurprisingly reflect the prior positions developed following the discussion draft.

Industry's reaction was mixed and somewhat noncommittal.  The American Chemistry Council, which represents many of the largest manufacturers of chemicals, issued a statement noting that the bill "is a step toward modernization of the nation’s chemical safety laws," but also suggesting that "more effort will be required to develop legislation that protects consumer safety, preserves America’s position as a leading innovator and safeguards American jobs."  The National Association of Manufacturers were more direct in stating their dislike for the bill, stating "“manufacturers are concerned with the direction taken in the Toxic Chemicals Safety Act.  In its current form, the bill hurts manufacturers’ ability to innovate and remain competitive in a global marketplace.  It dramatically expands the scope of the Environmental Protection Agency’s authority over every sector of our nation’s economy, sets unrealistic standards and timeframes and puts unnecessary burdens on manufacturers with new and inconsistent statutory requirements."   Similarly, the Society of Chemical Manufacturers and Affiliates, which represents many smaller and specialty manufacturers, states that the legislation would significantly hamper innovation and impose stringent regulatory burdens on batch, specialty and custom chemical manufacturers - particularly small and mid-sized companies."

No one should be surprised that industry organizations, which had largely indicated support for the modernization of TSCA for the greater part of the last year or two, would express misgivings about the bills when finally introduced.  Obviously after 34-years under the old system, there is hesitancy to jump into something new too fast.  Especially when it could be a significant burden on their memberships.  Given the reaction from industry this would seem to be the final nail in the coffin for passing TSCA reform legislation in this Congress.  With only a handful of legislative days left in the session and a likely rather eventful mid-term election, clearly industry and the minority party in Congress have no incentive or desire to rush a comprehensive bill to passage.  And so there seems to be much work to be done before another version gets introduced in the next Congress beginning January 2011.

Tomorrow I'll take a look at the advocacy community reaction.

House Hearing on TSCA chemical Reform Scheduled

The House Subcommittee on Commerce, Trade and Consumer Protection has scheduled a hearing on the newly introduced TSCA reform bill for this Thursday, July 29, 2010 at 10:00 am in the Rayburn Office Building in Washington DC.

The topic will be last week's introduction by Representatives Henry Waxman (D-CA) and Bobby Rush (D-IL) of H.R. 5820, the Toxic Chemicals Safety Act of 2010.  This is the formal bill for the discussion draft Waxman and Rush offered on April 15th when Senator Frank Lautenberg (D-NJ) introduced the Senate version of the bill.  The goal of both bills is to reform or modernize the 34-year old Toxic Substances Control Act that provides EPA with the authority to regulate chemicals.

A brief summary of the major points of the House bill is here.

The full text can be read here.

House Finally Introduces H.R. 5820, the Toxic Chemicals Safety Act of 2010

Finally. After releasing a "discussion draft" in April to coincide with Frank Lautenberg's Chemical Safety Act introduction in the Senate, Representatives Henry Waxman (D-CA) and Bobby Rush (D-IL) yesterday formally introduced H.R. 5820, the Toxic Chemicals Safety Act of 2010.

According to Waxman and Rush, "the legislation would amend the Toxic Substances Control Act of 1976 to ensure that the public and the environment are protected from risks resulting from chemical exposure."

Key provisions of the Toxics Chemicals Safety Act of 2010 include:

* Establishes a framework to ensure that all chemical substances to which the American people are exposed will be reviewed for safety and restricted where necessary to protect public health and the environment.

* Requires the chemical industry to develop and provide to the Environmental Protection Agency (EPA) essential data, and improves EPA’s authority to compel testing where necessary.

* Ensures that non-confidential information submitted to EPA is shared with the public and that critical confidential information is shared among regulators, with states, and with workers in the chemical industry.

* Establishes an expedited process for EPA to reduce exposure to chemical substances that are known to be persistent, bioaccumulative, and toxic.

* Creates incentives and a review process for safer alternatives to existing chemicals, promoting innovation and investment in green chemistry.

* Creates a workforce education and training program in green chemistry, promoting and ensuring long-term viability of American jobs.

* Encourages the reduction of the use of animals in chemical testing.

* Allows EPA to exempt chemicals already known to be safe from requirements of the Act.

* Promotes research to advance understanding of children’s vulnerability to the harms of chemicals.

* Directs EPA to address community exposures to toxic chemicals in certain “hot spot” locations.

* Requires EPA to engage in international efforts to control dangerous chemicals.

* Ensures that EPA actions are transparent, open to public comment, and subject to judicial review, without unreasonable procedural burdens.

* Gives EPA the resources needed to carry out this Act.

I'll have more after reviewing the 166-page document.  The big question is how much of the input from the various stakeholders meetings since the discussion draft have made it into the final bill.  And now that it has finally been introduced on the virtual eve of the August recesses and upcoming mid-term elections, what will become of it.

European Trade Group Updates Chemical Authorization Priority List

The European Trade Union Confederation (ETUC) last week updated its "Priority List" of chemical substances of very high concern. The trade union organization is pushing to have most of the chemicals in its list to require authorization under REACH.

According to their press release, the "Trade Union List version 2.0 includes 334 substances or group of substances ordered by priority, this represents 29 new entries compared to the first version published in March 2009. Most of these substances are identified as causative agents for recognised occupational diseases in the EU countries." So far the European Chemicals Agency (ECHA) has only identified 38 substances as candidates for authorization. ETUC wants to see this process sped up.

The ETUC is convinced that including the union-listed chemicals in the Authorisation List would cut the incidence of chemical-related occupational diseases and the attendant costs for the community, workers and industry itself. It will also be a strong incentive for companies to innovate and replace them by safer alternatives.

The ETUC list can be downloaded here.

US Agencies Work Together to Develop Chemical Screening Methods

One of the big questions regarding the new TSCA reform discussions is how exactly will companies meet any data obligations imposed by the new law. In the past any "data" request was expected to be filled by animal testing, but the animal welfare advocates and a realization of the limitations of animal testing have led many to look for alternative testing techniques.

The Tox21 collaboration merges the resources (research, funding and testing tools) of several US agencies "to develop ways to more effectively predict how chemicals will affect human health and the environment." The agencies include the EPA, the National Institute of Environmental Health Sciences (NIEHS) National Toxicology Program (NTP), the National Institute of Health (NIH) Chemical Genomics Center (NCGC), and most recently the Food and Drug Administration (FDA).

Through the collaboration the agencies hope to develop methods to screen all chemicals for risk quickly, efficiently, and in most cases without the use of animal testing. About 2,000 chemicals "have already been screened against dozens of biological targets," with hopes of getting that number up to five times that much by the end of this year. Eventually all 85,000+ chemicals on the market will have had at least an initial screening, which will help prioritize any chemicals of concern for more closer analysis.

A major component of the Tox21 collaboration is development of rapid and automated methods, which is the focus of a testing program called ToxCast. Many of these methods use sensitive cell culture and even genomic markers to screen for toxicity rather than going directly to standard animal testing. The idea is "high-throughput," i.e., screening a lot of chemicals fast so that those that are clearly not toxic can be put aside, those that are clearly very toxic can be prioritized, and those that are somewhere in the middle can get more targeted testing to address the specific questions raised.

National Research Council releases Climate Stabilization Targets report

As promised last week, the National Research Council of the US National Academy of Sciences has released a new report where they state that "emissions of carbon dioxide from the burning of fossil fuels have ushered in a new epoch where human activities will largely determine the evolution of Earth's climate." In short, human activity is causing climate change, and we need to do something about it.

The full (243 page) report, called "Climate Stabilization Targets; Emissions, Concentrations, and Impacts Over Decades to Millenia" can be downloaded for free on the National Academy Press web site.

The NRC is concerned that "because carbon dioxide in the atmosphere is long lived, it can effectively lock the Earth and future generations into a range of impacts, some of which could become very severe."

According to the report, "important policy decisions can be informed by recent advances in climate science that quantify the relationships between increases in carbon dioxide and global warming, related climate changes, and resulting impacts, such as changes in streamflow, wildfires, crop productivity, extreme hot summers, and sea level rise." The report takes the tack that "one way to inform these choices is to consider the projected climate changes and impacts that would occur if greenhouse gases in the atmosphere were stabilized at a particular concentration level." The report tries to do just that using data from the literature. NRC intends the report to be "a useful resource for scientists, educators and policy makers, among others."

House TSCA bill release delayed until next week

On Wednesday I noted that the US House of Representatives was expected to release the formal version of their TSCA reform bill this week. But the full responsible committee was tied up in Mark Ups of other bills all day yesterday, so the formal release is now planned for next Thursday, July 22nd.

A committee hearing is tentatively scheduled for the following Thursday, July 29th, and will be officially announced when the bill is introduced.

In April the House had released a "discussion draft" to coincide with the introduction of Senator Lautenberg's Safe Chemicals Act of 2010 bill. As previously noted, a series of stakeholder meetings were held following the discussion draft, and all stakeholders will be very interested to see how much of their input was incorporated into the formal bill. A good faith effort to acknowledge stakeholder concerns will help passage of the bill.

Though when that will happen is anyone's guess. It is highly unlikely to happen this session of Congress with control of possibly both houses uncertain, as I noted in a previous commentary. But no matter which party is in control of Congress, there is at least public support from all stakeholders to modernize the 34 year old law - industry to avoid a patchwork of state regulations and advocacy groups to strengthen EPA's ability to require data be submitted.