The Long Road to Reforming America's Chemical Law May Soon Be Over

Earlier this week it was announced that Senators Barbara Boxer (D-CA) and James Inhofe (R-OK) had reached an agreement on the long awaited update to the Toxic Substances Control Act (TSCA). TSCA was originally passed in 1976 and signed into law by President Gerald Ford. To say that it is outdated would be the understatement of two centuries. Reform has been a long road with many twists and turns, not the least of which is the first sentence in this paragraph.

Yes, the news was that Boxer and Inhofe had agreed on the TSCA reform law. The fact that Boxer and Inhofe have agreed on anything is news in itself, but the fact that the two of them are even mentioned in the same breath as this new law is amazing given that neither really had much to do with its development.

A quick recap. Late Senator Frank Lautenberg (D-NJ) first introduced a formal bill to reform TSCA back in 2005. It never even got a discussion in committee. Neither did his re-try in 2009. His re-try in 2013 was introduced not long before he died at the age of 89. In the intervening weeks, a bed-ridden Lautenberg joined with Senator David Vitter (R-LA) to introduce a TSCA reform bill that was light-years away from the bill Lautenberg had just reintroducd. You read that right. A Republican from the petrochemical state of Louisiana introduced a chemical control bill with the man who had been fighting to reform chemical control for a decade.

After Lautenberg's passing, Senator Tom Udall (D-NM) took over and actually worked very hard with Vitter to refine and improve the bill. After a few iterations (most of which were virulently opposed by Senator Boxer), they came out with a bill they named the "Frank R. Lautenberg Chemical Safety for the 21st Century Act." A completely different bill was introduced in the House, but that bill was considered a joke by everyone in the know, a fact that was obvious by its unanimous passing by both parties in a House where bipartisanship is considered an act of war. The House bill was merely to have something they passed so that the committee that reconciles the Senate and House versions into a law had something to sign off on. Given that Boxer and Inhofe, the two political powerhouses in the Senate, had the final say indicates what everyone knew - that the final version is essentially the Senate version with a few more assurances that states aren't completely blocked from dealing with chemicals that EPA has yet to rule on.

Which gets us to now. The conference committee has come up with a "reconciled" version that is expected to be passed by both houses of Congress shortly. The President has indicated he will sign it, perhaps with a big ceremony at the White House. Most people are happy - Republicans, Democrats, health and safety advocacy groups, chemical trade associations, and the consultants and lawyers who will make tons of money helping their clients comply with the law.

Now here is the slap in the face. The new TSCA law won't make us safer. As the article at the link notes:

The law itself won't make us safer, but the fact that we'll be focused on identifying and prioritizing chemicals to take a closer look rather than waving our hands in the air doing nothing...well, that focus will make us safer.

So congratulations to industry for getting a law that favors them passed. Congratulations for health and safety advocacy groups for getting a law passed that at least gets us beyond the distractions of doing nothing while debating a new law. Congratulations to Congress for wasting taxpayers money and time "debating" for 10 years something that is only getting passed now because industry thinks Republicans will lose control of at least part of Congress in the fall. Sure, that sounds cynical, but not as much as thinking Republicans in Congress are doing something for the public good.

The long road to reforming TSCA is not over. Now the work begins. The EPA will have to develop a way to implement a law while continuing to lose senior staff, having their budget cut frequently, and being harassed by Republican lawmakers/lobbyists on a daily basis. It will be EPA who will figure out how to improve the health and safety evaluation process for chemicals. May they survive the success of reforming TSCA.

Book Review - The People's Republic of China/Chemicals by William J. Kelly and Chip Jacobs

An important book, poorly written. The People's Republic of China Chemicals purports to reveal how the offshoring of American manufacturing to China helped China become the most polluted country on the planet. It does achieve that goal, though perhaps in spite of itself. While the title suggests a discussion on chemicals, the vast preponderance of the book is focused on the massive air pollution problems in China. This isn’t surprising given the authors’ previous collaboration, a book about the smoggy days of Los Angeles.

The early chapters provide some historical background on China’s dynastic rule and frequent invasions by the Japanese, the British, and others, as well as its own political infighting. Their overly rosy characterization of Mao’s various attempts to control everything once he and the communists took over is somewhat naïve – or at the very least, incomplete – but they generally capture the essence of how China came to set itself up as the world’s factory. The authors’ explanation of how entry into the World Trade Organization (WTO) and various bilateral and multilateral trade agreements spurred the rapid growth of industry and economy, while perhaps overly rancorous, is well done.

In short, the book documents through rapid-fire detail and personal anecdote the rise of Chinese manufacturing and with it the extraordinary increase in coal-based pollution. The authors relate how bad the air pollution has become, and the subterfuge of the Chinese government to deny its existence even as giant screens in Tiananmen Square broadcast barely visible images of splendid panoramic vistas through the gritty air. The book does a good job of showing how China periodically shut down industry and banned automobiles in an effort to clear the air, usually when foreign dignitaries were in Beijing for meetings, during the 2008 Olympics, and for other events in which foreign media were present. Finally, near the end they discuss chemicals other than smog, though only superficially. They also touch on some attempts by China to do something about a problem they recognize but can’t solve alone. This last point deserved much more attention than it got. Still, the information they present is important for all of us to know and understand.

The biggest negative about the book is the writing. It often appears that the two authors each took the lead on different chapters. Some chapters are clearly written and eminently informative. Other chapters are so full of hyperventilating prose seemingly more interested in hearing its own breathless recitation of a thesaurus than communicating the information. In fact, these chapters and sections contain so many clichés (sometimes not even getting them right, e.g., “pedal-to-the-medal”) and bombastic turns of phrases that half the sentences carry no meaning whatsoever.

That said, the basic message, though too often lost in the laborious, self-indulgent writing, is that China became a cesspool of pollution in part because of our offshoring of manufacturing jobs to them. With global warming and prevailing air currents, that pollution is coming back to haunt us. So as difficult as it sometimes is to get beyond the verbal gymnastics, the book is still a worthwhile read.

House Hearing on Chemicals in Commerce Act Shows Politics in Action, not TSCA Reform

Yesterday, March 12, 2014, the House Environment and the Economy Subcommittee held a hearing on its version of a TSCA reform bill. As noted last week, a discussion draft of the Chemicals in Commerce Act (CICA) was released on February 27th. The bill reflects the "business first" leanings of the House Republican majority, which shouldn't be surprising given how that majority lumped environmental issues with economic ones in naming their subcommittee.

It wasn't difficult to figure out which witnesses had been called by each political party. Some represented various corporations and trade associations of industry, while others represented worker unions and health advocacy organizations. All provided their input on the CICA discussion draft. You can read the full witness list and their written testimony, plus watch the video of their oral testimony at the hearing here. A background document and the full CICA discussion draft are also available. You can read analyses of the bill and hearing here and here. An NGO analysis of the bill can be read here. See my earlier article for other NGO and trade association feedback.

All the usual posturing occurred during the hearing. Industry representatives assured the subcommittee that industry wants the public to believe chemicals are safe. NGOs and health advocates expressed concern that neither CICA nor the Senate's CSIA would adequately protect public health and the environment. House members mimed their party's assigned positions.

If that sounds cynical, it is. But it accurately reflects the lack of seriousness by the House to address the problem. TSCA is broken. Everyone agrees that TSCA is broken. They may differ on how much and how best to proceed, but they agree that reforming TSCA is necessary, and that it should be done now. The Senate's Chemical Safety Improvement Act (CSIA) at least tried to keep the main focus on fixing the inherent problems with the severely outdated and often ineffective existing chemical law. While the CSIA includes none of the pre-market testing originally advocated by health and environmental advocates, it does give EPA some additional flexibility and authority to ask for new data. The Senate's CSIA isn't perfect, but most stakeholders agree that it is a step in the right direction. And it's workable.

In contrast, the House's CICA doesn't even bother to pretend that its goal is to assure chemical safety. It's clear that the House CICA has three goals.

1) Roll back the very few industry concessions in the already industry-friendly Senate CSIA.

2) Further undermine EPA's authority to take action to protect human health and the environment.

3) Throw red meat to the most rabid supporters of the Republican party.

So cynical, yes. And that is a shame. The House held a series of hearings to "collect information on TSCA," so looked like it was taking this issue seriously. As shocking as it was to see the lack of knowledge by many members of the committee on issues in which it claims oversight, the draft bill that resulted from all those hearings is even more disturbing. It reflects an out-of-control partisan attack on the health and safety of all Americans. As such, industry should be rejecting CICA rather than giving it lip service. If industry wants to avoid the patchwork of state bills regulating chemicals, the renewed efforts by NGOs to enact those state and local bills, and the absolute loss of public faith in industry veracity, then industry should be telling the majority that runs the House to issue a new version of CICA more in line with the modified CSIA currently being negotiated in the Senate.

If TSCA isn't modernized this year, it won't be modernized. Ever. It's time for the House to stop playing political games and start doing their job. This is about public safety, not making political points.

House Issues TSCA Reform Discussion Draft - Mocks Attempts at Chemical Safety Modernization

On February 27, 2014 the US House Committee on Energy and Commerce issued a "discussion draft" of what it calls the Chemicals in Commerce Act (CICA). In doing so it mocked the bipartisan efforts by the Senate to modernize the nearly 40-year-old Toxic Substances Control Act (TSCA) and showed that partisan politics still rules the lower chamber of Congress.

In short, the CICA is a step backwards. The press release headline from Ranking Member and long-time advocate for chemical safety reform Henry Waxman says it all: "Rep. Waxman Statement on Republican TSCA Reform Bill Draft." While the Senate bill, dubbed the Chemical Safety Improvement Act (CSIA) received demonstrative support from both parties and largely would enhance the ability to ensure chemical safety, the House CICA, in Waxman's words, "would weaken current law and endanger public health."

The NGO Safer Chemicals Healthy Families lists several deficiencies with the bill. They describe the draft thusly:

Well, the chemical industry interests are reaching deep into their bag of tricks with the draft “Chemicals In Commerce Act” released by Rep. John Shimkus (R-IL) this week. Who do they think they’re fooling?

This draft is a vehicle for more secrets, more safety data loopholes, and faster introduction of untested chemicals—all disguised as “reform” of a badly outdated 1976 Toxic Substances Control Act.

The Environmental Defense Fund, which supports the Senate's bipartisan TSCA reform bill, described a scenario in which the USEPA would have to prove not only that a chemical put on the market was dangerous, but also find a replacement for it before any action could be taken to remove it. And that was only the first of a series of "Major Problems" with the CICA draft.

Even the American Chemistry Council, a strong advocate and heavily involved in the writing of the bipartisan Senate version of the bill, was lukewarm on the House Republicans draft. In an perfunctory press release, ACC touted the Senate bill while giving boilerplate praise to Rep. Shimkus' williness to hold hearings. The House draft bill got some discussion at the chemical industry sponsored GlobalChem conference this week, but it was clear the Senate bill is the preferred path forward.

So what happens next? The House plans to hold at least three hearings on its CICA draft, which at least shows a willingness to move forward with a bill (a positive step). That said, the House Republican CICA reflects the Republican history of attempting to restrict EPA's ability to protect human health and the environment, something the Senate bipartisan CSIA bill has tried to correct. After all, the entire reason we are discussing chemical safety reform is because the current law, TSCA, makes it too difficult for EPA to regulate chemicals. The House bill would make that problem worse.

But the chemical industry wants TSCA reform. They don't like having to deal with 50 different rules from 50 different states. Industry knows that failure to reform TSCA will be the impetus for NGOs to heighten their advocacy for severe state-based restrictions on chemicals that are deemed unsafe. Industry knows that the Senate bipartisan bill dropped all of the major requirements the NGOs wanted, thus making this the most industry-friendly bill industry could have hoped to achieve. Industry also likely knows that the House CICA bill is a non-starter designed to pander to the tea party wing of the Republican party and can't possible pass in its current form.

The most likely scenario, therefore, is that after some political showmanship on the House side, the Senate bill - with potentially significant "tweaks" to address issues already raised - will be passed in the Senate and sent to the House. Once there it is almost certain that enough votes would appear to pass the bill and finally update TSCA. Why so certain? Because industry has a bill that puts very little burden on them while giving them something to tout in press releases. Industry will tell House Republicans to pass the Senate bill. Democrats will vote for it because it does take measurable steps to improve health and safety.

Once the modified CSIA is law, the Republican-led House will go back to their obsessive attempts to defund and otherwise restrict EPA's authority, while the House simultaneously works to insulate industry from scrutiny. Industry wins both ways, but at least with the CSIA in place the public also gains some additional power to ensure the safety of chemicals. It isn't great, but it's better than what we have now.

"Epic Fail" in Communications - Dealing with Chemicals in an Emergency

Chemicals are all around us. Mostly they make our lives easier. Without them our lives would be, in many minds, primitive. But sometimes chemicals suddenly become a bad thing. Like the West Virginia spill that dumped a chemical known as MCHM into Elk River and contaminated water supplies for weeks. The spill reemphasized the importance of having good emergency response plans and communication. It also reemphasized that such plans and communication are woefully lacking.

Richard Denison, a senior scientist at the Environmental Defense Fund (EDF), has written extensively on the "epic fail" in West Virginia and on chemical communication issues in general. I'll let you read his series of blogs on the subject.

One point Denison brings out is the inadequacy of Material Safety Data Sheets, commonly called MSDSs. He delves into the difficulties caused to first responders by lack of up-to-date information...even to the point of not knowing there was more than one chemical involved in the spill. This is not a new problem. In fact, it is tragically common.

MSDSs list basic information about the chemical, such as name, identifying information, basic physical-chemical properties, toxicity, and environmental toxicity. They also list basic first aid steps, how to fight any fires that involve the chemicals, storage, and disposal. Or at least this is what they do in theory. In reality, many MSDSs hold the name of the chemical as confidential business information. The basic properties are often missing. And toxicity and environmental toxicity data are usually limited to, well, no data. What toxicity that do appear are often outdated, some based on tests that were conducted decades ago. Just as often the actual study reports for any data cited cannot be located in the files. Or maybe can be located after a delay. If pressed.

There has been some improvement. In some cases. In 1998 a voluntary program called the High Production Volume Challenge resulted in the compilation of a large amount of health and safety data for the 2000 or so highest volume chemicals. Mostly these data were sent to EPA, made available on a website, then ignored. [EPA did try to do screening risk assessments, but this process seemed to change every few years.] Being voluntary, no requirement to update MSDSs was included, and mostly they weren't. Then in 2007 the REACH program in Europe required extensive data for every chemical in commerce. REACH did require that MSDSs (called SDSs in Europe) to be updated with actual test information.

However, as the West Virginia situation shows, most MSDSs remain a jumble of missing information and boilerplate warnings designed to limit the manufacturer's liability in the event of a problem. They are more insurance requirements than they are assurance of safety and proper handling. Saying "may cause skin irritation" but not having any actual data that demonstrates skin irritation isn't particularly meaningful. Are the data available to make this judgment, or is the catchphrase just there in case someone gets irritated? Either way, the MSDS is not doing what it is supposed to be doing - give reliable information that informs the user.

As Congress moves closer to reforming the Toxic Substances Control Act (TSCA), will they make MSDSs useful? Or simply continue the illusion?

[Note that the House held a hearing on February 4th in which they essentially said that a TSCA reform bill (likely a tweaked version of the CSIA) will be decided this year.]

January 9, 2014, spill of multiple chemicals into West Virginia’s Elk River, it’s b - See more at: http://blogs.edf.org/health/2014/01/26/epic-fail-in-west-virginia-chemical-spill-poor-information-poor-communications-poor-decisions/#more-2985

January 9, 2014, spill of multiple chemicals into West Virginia’s Elk River, it’s b - See more at: http://blogs.edf.org/health/2014/01/26/epic-fail-in-west-virginia-chemical-spill-poor-information-poor-communications-poor-decisions/#more-2985

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?

House Hearing - The Chemical Safety Improvement Act - November 13, 2013

As noted previously, the House Environment and the Economy subcommittee is holding a hearing Wednesday, November 13, 2013 in Room 2123 of the Rayburn House Office Building. The hearing begins at 10:15 am and will be live-streamed for those who can't squeeze into the hearing room.

The hearing is focused on evaluation of the bipartisan TSCA reform bill introduced earlier this year in the Senate by the late Frank Lautenberg (D-NJ) and David Vitter (R-LA). Called the Chemical Safety Improvement Act (CSIA), the Senate bill is likely to be the basis for any House bill offered in this Congress.

Background documents are available on the House committee website. Currently scheduled witnesses include Senators Vitter (R-LA) and Udall (D-NM), who are working together to bring the Senate bill to fruition. Udall stepped in for original sponsor Frank Lautenberg upon his death and as surrogate for Committee Chair Barbara Boxer (D-CA). Also, in a change from past hearings, Assistant Administrator Jim Jones will present EPA's thoughts on the bill.

In a far-reaching effort to get different viewpoints, other witnesses include some from industry and from NGOs: Cal Dooley of the American Chemistry Council, Richard Denison of the Environmental Defense Fund, Ernie Rosenberg of the American Cleaning Institute, and Andy Igrejas of Safer Chemicals, Healthy Families, as well as Wendy Wagner of the University of Texas School of Law and Richard Goss of the Information Technology Industry Council. Other witnesses may also be called. Most notably missing is Ken Cook of the Environmental Working Group, which is one of the NGOs who are not quite as on board with the bill as ACC and EDF.

The fact that the House has moved from initial forays into how TSCA works in general to evaluation of a specific bill suggests that the House is willing to actually pass legislation at least close to what the bipartisan CSIA offers. That's likely a good thing as there really isn't any other opportunity for a TSCA reform bill other than the CSIA getting through Congress, and all parties agree that TSCA is severely outdated and must be reformed. That said, there are only a handful of legislative days left before Congress takes yet another break, so it's just unreasonable to think that a bill will be passed before next year.

Of course, next year is a mid-term election year, which creates a new dynamic. Whether that dynamic increases or decreases the likelihood of passage will be the topic of a future post.

For updates and more information on the hearing go to the hearing website.

Witnesses: 

Panel I:
The Honorable David Vitter

• Member
• United States Senate

The Honorable Tom Udall

• Member
• United States Senate

- See more at: http://energycommerce.house.gov/hearing/s-1009-chemical-safety-improvement-act#sthash.Y9dL1SLa.dpuf

Witnesses: 

Panel I:
The Honorable David Vitter

• Member
• United States Senate

The Honorable Tom Udall

• Member
• United States Senate

Panel II:

The Honorable Jim Jones

• Assistant Administrator, Office of Chemical Safety and Pollution Prevention
• U.S. Environmental Protection Agency
• Washington, D.C.
• Witness Testimony (Truth in Testimony and CV)

Panel III:

Calvin M. Dooley

• President and CEO
• American Chemistry Council
• Witness Testimony (Truth in Testimony and CV)

Richard Denison, Ph.D.

• Senior Scientist
• Environmental Defense Fund
• Witness Testimony (Truth in Testimony and CV)

Ernie Rosenberg

• President and CEO
• American Cleaning Institute
• Witness Testimony (Truth in Testimony and CV)

Andy Igrejas

• National Campaign Director
• Safer Chemicals, Healthy Families
• Witness Testimony (Truth in Testimony and CV)

Wendy Wagner

• Joe A. Worsham Centennial Professor
• The University of Texas School of Law
• Witness Testimony (Truth in Testimony and CV)

Richard E. Goss

• Vice President, Environment and Sustainability
• Information Technology Industry Council
• Witness Testimony (Truth in Testimony and CV)

- See more at: http://energycommerce.house.gov/hearing/s-1009-chemical-safety-improvement-act#sthash.Y9dL1SLa.dpuf

Witnesses: 

Panel I:

House to Consider Senate TSCA Reform Bill

The House Environment and the Economy subcommittee chaired by Representative John Shimkus (R-IL) is expected to begin specific evaluation of the bipartisan TSCA reform bill introduced earlier this year in the Senate by the late Frank Lautenberg (D-NJ) and David Vitter (R-LA). I'll link to the committee hearing page when it is listed, but right now it appears to be set for Wednesday, November 13, 2013.

The Senate bill, called the Chemical Safety Improvement Act (CSIA), was a surprise introduction, coming only a month after Senator Lautenberg had introduced the latest version of his own TSCA reform bill. Lautenberg had been a staunch advocate for chemical safety, working tirelessly since 2005 to reform the 37 year old law. He died shortly after the CSIA was introduced, leading some to suggest that his was pushed into agreeing to a bipartisan bill that is clearly much more industry friendly than his own bill.

At least two dozen Senators - split roughly equally between Democrats and Republicans - have signed on as co-sponsors to the CSIA. Several hearings in the Senate and House occurred earlier in the summer but no action has been taken recently given distractions such as summer holidays and the arbitrary government shutdown.

The fact that the House will take up review of the bill suggests that there has been behind-the-scenes effort to move the bill along. Industry loves the bill because it avoids any significant across-the-board data requirements (such as those required in Europe's REACH program). Environmental and health advocates are split on the bill for that same reason and others, but most acknowledge that this bill does make improvements over the Toxic Substances Control Act it is designed to replace.

As the process moves forward I'll have more on the bill, its pluses and minuses, and its likelihood of passage. Right now it's the only game in town. The question remains - is it the right game?

One news report on the upcoming hearing is at The Hill. The hearing will be announced on the committee website.

House Subcommittee Hearing on Toxic Substances Control Act

On June 13, 2013 the House Energy & Commerce Committee's Subscommittee on Environment and the Economy will hold a hearing titled "Title I of the Toxic Substances Control Act: Understanding its History and Reviewing its Impact." This hearing begins the process in the House as the Senate begins debate on the bipartisan Lautenberg-Vitter Safer Chemical Improvement Act bill introduced in the Senate.

Witnesses invited to speak are:

Kathleen M. Roberts
B&C Consortia Management LLC (a legal and consulting firm)

Charles M. Auer
Charles M. Auer & Associates LLC (consulting firm; former head of EPA's chemicals group)

Alfredo Gomez
Government Accountability Office (researches and produces analysis of government programs)

Beth Bosley
Boron Specialties LLC (industry)

Jeanne Rizzo
Breast Cancer Fund (health advocacy)

Daniel Rosenberg
Natural Resources Defense Council (environmental NGO)

The hearing will take place on June 13th at 10:15 am room 2322 of the Rayburn House Office Building. More details and the invitation-only witnesses will be posted on the Energy and Commerce subcommittee's webpage.

A background memo is available.

House Committee Will Hold Hearing on TSCA Reform

Following up on the surprise introduction of a bipartisan TSCA reform bill in the Senate, the House Energy & Commerce Committee's environment and economy subcommittee has scheduled a hearing to discuss "Title I of the Toxic Substances Control Act: Understanding its History and Reviewing its Impact." It's unclear how whether this hearing is a counter to the Lautenberg-Vitter Safer Chemical Improvement Act bill introduced in the Senate, or the beginning of support for the measure.

The Senate is controlled by Democrats, the House by Republicans. Given that the bill was developed by Senator Vitter and the chemical industry and includes significant compromise on the part of the Democrats and environmental groups as opposed to Lautenberg's previous Safe Chemical Act bills, it's likely the House action is to pave the way for some sort of TSCA reform bill to be put into law. The bill was introduced with a dozen bipartisan cosponsors as Senator Lautenberg was living what turned out to be his final days; he died on June 3rd less than two weeks after the bill was introduced.

The hearing will take place on June 13th at 10:15 am room 2322 of the Rayburn House Office Building. More details and the invitation-only witnesses will be posted on the subcommittee's web page.

Senator Frank Lautenberg has died

Long-time advocate of safer chemicals, Senator Frank Lautenberg (D-NJ), has died at the age of 89.

Read more here.

And here.

Lautenberg has repeatedly pushed for modernization of the Toxic Substances Control Act (TSCA). He recently co-sponsored a bill with Senator David Vitter (R-LA) only weeks after reintroducing his own bill.

The cause of death was viral pneumonia. The Senator had been ill for the last few months. He survived a bout with cancer several years ago.

The surprise introduction of the Safer Chemicals Improvement Act (SCIA) was seen by some as a sign that Senator Lautenberg's health had deteriorated and that his colleagues wanted to honor him with a chemicals bill that could pass the Senate.

Republican Governor Chris Christie will appoint someone to fill Lautenberg's seat.

Senators Lautenberg and Vitter Announce Bipartisan Chemical Safety Improvement Act

In a surprise move, Democratic Senator Frank Lautenberg (NJ), long a champion of safer chemicals, and Republican Senator David Vitter (LA) jointly announced introduction of the Chemical Safety Improvement Act of 2013. 

The bipartisan cosponsors include: co-sponsored by U.S. Senators Kirsten Gillibrand (D-NY), Mike Crapo (R-ID), Richard Durbin (D-IL), Lamar Alexander (R-TN), Charles Schumer (D-NY), James Inhofe (R-OK), Mary Landrieu (D-LA), Susan Collins (R-ME), Joe Manchin (D-WV), Marco Rubio (R-FL), Robert Menendez (D-NJ), and John Hoeven (R-ND).

 More details on Senator Lautenberg's website.

Reaction from the American Chemistry Council.

From the American Cleaning Institute.


From the Consumer Specialty Products Association (CSPA). CSPA also provides a table comparing the new Chemical Safety Improvement Act of 2013 with TSCA.

From Safer Chemicals, Healthy Families (a coalition of health and environmental advocates).

According to the announcement, "the Lautenberg-Vitter “Chemical Safety Improvement Act of 2013” would:

• Require Safety Evaluations for All Chemicals: All active chemicals in commerce must be evaluated for safety and labeled as either “high” or “low” priority chemical based on potential risk to human health and the environment.  For high priority chemicals, EPA must conduct further safety evaluations. 
• Protect Public Health from Unsafe Chemicals: If a chemical is found to be unsafe, the Environmental Protection Agency (EPA) has the necessary authority to take action.  This can range from labeling requirements to the full phase-out or ban of a chemical.  
•  Prioritize Chemicals for Review: The Environmental Protection Agency will have to transparently assess risk, determine safety, and apply any needed measures to manage risks.
• Screen New Chemicals for Safety: New chemicals entering the market must be screened for safety and the EPA is given the authority to prohibit unsafe chemicals from entering the market. 
• Secure Necessary Health and Safety Information: The legislation allows EPA to secure necessary health and safety information from chemical manufacturers, while directing EPA to rely first on existing information to avoid duplicative testing. 
• Promote Innovation and Safer Chemistry: This legislation provides clear paths to getting new chemistry on the market and protects trade secrets and intellectual property from disclosure. 
• Protect Children and Pregnant Women: The legislation requires EPA to evaluate the risks posed to particularly vulnerable populations, such as children and pregnant women, when evaluating the safety of a chemical—a provision not included in existing law.
• Give States and Municipalities a Say:  States and local governments will have the opportunity to provide input on prioritization, safety assessment and the safety determination processes, requiring timely response from EPA, and the bill establishes a waiver process to allow state regulations or laws to remain in effect when circumstances warrant it.  

GAO Issues Report on EPA's Effort to Enhance TSCA Chemical Regulation

At the request of some members of Congress, the Government Accountability Office (GAO) has conducted another study on how EPA "has increased efforts to assess and control chemicals." GAO concludes that progress has been made but EPA could "strengthen its approach."

From the highlights:

GAO was asked to evaluate EPA’s efforts to strengthen its management of chemicals. This report determines the extent to which (1) EPA has made progress implementing its new approach and (2) EPA’s new approach positions it to achieve its goal of ensuring the safety of chemicals. GAO examined agency documents and TSCA rulemaking and interviewed agency officials and stakeholders from industry and environmental organizations.

The starting point was the 2009 announcement by EPA of TSCA reform principles. Because TSCA reform bills, most notably those introduced by Senator Frank Lautenberg, have not resulted in any update to the 1976 law, EPA has been working hard to maximize its current authority under TSCA. The GAO assessed its progress. The results are mixed, at best.

The results of EPA’s data collection activities, in most cases, have yet to be realized, and it may take several years before EPA obtains much of the data it is seeking.

In fact, the GAO summarizes:

Of the 83 chemicals EPA has prioritized for risk assessment, it initiated 7 assessments in 2012 and plans to start 18 additional assessments in 2013 and 2014. However, it may take several years to complete these initial risk assessments and, at the agency’s current pace, over a decade to complete all 83, especially as EPA does not have the toxicity and exposure data needed for 58 of the 83 chemicals prioritized for risk assessment.

While GAO recommends that EPA "develop strategies that address challenges impeding its ability to ensure chemical safety," the impeding challenges are well known - Congress simply won't take the steps necessary to modernize the nearly four-decade-old chemical law.

In a letter responding to the draft GAO report, Acting Assistant Administrator James Jones noted that GAO has several times before called for Congress to update the antiquated TSCA law:

It is EPA's position that, absent such statutory changes, the Agency will not be able to successfully meet the goal of ensuring chemical safety now and into the future.

With no realistic update to the law in sight, and constant attacks on EPA's budget, any blame for lack of chemical safety should be placed where it belongs - on Congress.

The full GAO report can be downloaded here.

Will current efforts to reform the TSCA chemical control law actually roll back progress?

Just last week Senator Frank Lautenberg (D-NJ) reintroduced his Safe Chemicals Act and there was hope for some sort of TSCA reform. Senator David Vitter (R-LA) is expected to introduce an alternative, chemical-industry-backed, counter-bill in the next few weeks. But Richard Denison, senior scientist at the Environmental Defense Fund (EDF), believes that Senator Vitter's bill will actually roll back even the current limited authority of EPA to regulate chemicals under TSCA.

While some of this is speculation since very few people have seen Vitter's bill - he seems to have consulted primarily with only the one major chemical trade association and cut out other chemical groups, health advocates, environmentalists, and the public - Denison gleans from public statements several areas that could result in dramatic weakening of the current TSCA.

For example, rather than making it easier for EPA to request testing on chemicals with little data but apparent concern, Vitter's bill may actually make it harder for EPA to do so. According to Denison, the bill could also restrict the abilities of states to step in when the federal authorities fail, or are incapable, of taking action. There has also been widespread questioning of the risk standard proposed in the Lautenberg bill, a standard that Denison points out has been endorsed by major medical groups as necessary to protect vulnerable subpopulations, including developing fetuses and infants. The Vitter bill would also apparently make no changes to the current PMN process for new chemicals, a process that requires virtually no health and safety data be submitted in most cases.

So despite some movement on TSCA reform - the introduction of one and probably two new bills - it seems we're headed for another stalemate in which the goal is to stop TSCA reform. Again.

Denison's blog article can be found on the EDF website.

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.

Lautenberg Steps Down as Chair of Toxic Chemicals Subcommittee

Senator Frank Lautenberg of New Jersey, long a champion of efforts to reform the Toxic Substances Control Act (TSCA), will no longer chair the Superfund, Toxics, and Environmental Health Subcommittee of the Senate Environment and Public Works Committee. Lautenberg, of course, has introduced several versions of a Safe Chemicals Act over previous Congresses.

Replacing Lautenberg as chair will be Senator Tom Udall of New Mexico. Barbara Boxer of California chairs the full EPW Committee. David Vitter of Louisiana had already replaced Senator Inhofe of Oklahoma as ranking minority member of the committee. The main reason given for the change to Udall on the toxics subcommittee is that Lautenberg has taken up the chair for the Financial Services subcommittee of the Senate Appropriations Committee and simply will not have time. Lautenberg is up for reelection in 2014, though at 90 years old it seems unlikely he will run.

Meanwhile, Lautenberg expects to continue his push for TSCA reform during the current Congress, and with Vitter apparently working with industry to craft a counter-bill, it is possible that we'll see some sort of TSCA reform bill at least reach debate.

EU Commission Publishes REACH Review

The EU Commission has fulfilled its obligation to review the REACH program. It published its REACH review on February 5, 2013. The 15-page document concluded:

"that REACH functions well and delivers on all objectives that at present can be assessed. Some needs for adjustments have been identified, but balanced against the interest of ensuring legislative stability and predictability, the Commission will not propose any changes to the enacting terms of REACH."

They did, however, determine that there is a need to reassess the impact of REACH on small and medium sized entities (SMEs), which because of their relative low benefit compared to the high costs of compliance the Commission felt have still been unduly impacted despite reduced fees and testing obligations.

A summary of the report can be read here.

The prepublication version of the report can be downloaded here as a PDF.

26 States to Consider Toxic Chemicals Legislation in 2013

As TSCA reform enters another year without any resolution, at least 26 states are considering action to enhance protection of public health and the environment from exposure to chemicals. According to the advocacy coalition, Safer States:

In 2013, we expect at least 26 states to consider legislation and policy changes that will:

• Restrict or label the use of bisphenol A (BPA) in receipts, children's products and food packaging.
• Require removal of certain toxic flame retardants from children's products, home furniture or building materials.
• Change disclosure rules so that concerned consumers will have a way to identify toxic chemicals in products.
• Encourage manufacturers to remove identified toxic chemicals in favor of safer alternatives.
• Ban cadmium, a dangerous, persistent metal that is often found in inexpensive children's jewelry.
• Ban formaldehyde from cosmetics and children's products.
• Promote green cleaning products in schools.

Safer States states that "We believe families, communities, and the environment should be protected from the devastating impacts of our society’s heavy use of chemicals. We believe that new state and national chemical policies will contribute to the formation of a cleaner, greener economy." They have also been highly critical of industry, reporting on what it sees as misplaced priorities "inside the toxic chemical industry."

So state efforts continue. At the federal level, Democratic Senator Frank Lautenberg has indicated that he will reintroduce his Safer Chemicals Act. The SCA was passed out of committee last year but never came to the Senate floor for debate or vote. The committee-passed version includes substantial changes from the original bill, including many adjustments to take into consideration concerns expressed by industry. Still, industry widely denounced the bill as unworkable, a position that Richard Denison of the Environmental Defense Fund and Andy Igrejas of Safer Chemicals Healthy Families have asserted is disingenuous at best. Industry is, however, reportedly working with Republican Senator David Vitter on what is effectively an industry-sponsored bill. It is unclear when or if Vitter's bill will be introduced, but any such bill would at least provide a counter-position to that of Lautenberg and offer opportunity for substantive debate.

EPA Releases Draft Risk Assessments Under Existing Chemicals Work Plan

From the USEPA Press Release:


"EPA today released for public comment draft risk assessments, for particular uses, on five chemicals found in common household products. The draft risk assessments were developed as part of the agency’s Toxic Substances Control Act (TSCA) Work Plan, which identified common chemicals for review over the coming years to assess any impacts on people’s health and the environment. Following public comment, the agency will seek an independent, scientific peer review of the assessments before beginning to finalize them in the fall of 2013." 

The chemicals and specific use for which risk assessments were released are:

• methylene chloride or dichloromethane (DCM) and n-methylpyrrolidone (NMP) in paint stripper products; 
• trichloroethylene (TCE) as a degreaser and a spray-on protective coating; 
• antimony trioxide (ATO) as a synergist in halogenated flame retardants; and 
• 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8,-hexamethylcyclopenta-[γ]-2-benzopyran (HHCB) as a fragrance ingredient in commercial and consumer products.

A brief summary of the risk assessments can be downloaded in PDF format.

More information can be read on the EPA website.