By Pat Rizzuto
Feb. 4 --Members of a House subcommittee pointed to the lack of toxicity and
other data on chemicals that recently contaminated drinking water for hundreds
of thousands of West Virginia residents as illustrating a key reason the Toxic
Substances Control Act (TSCA) needs to be revised.
officials had to scramble in early January after the chemicals leaked into the
Elk River and got into the water supply, said Rep. Henry Waxman (D-Calif.),
ranking member of the full Energy and Commerce Committee.
They could not
find meaningful health and safety data, he said.
illustrates the serious problems of current law,” Waxman said.
Energy and Commerce's Subcommittee on Environment and the Economy held a
hearing on Sections 4 and 8 of TSCA. Those sections authorize the EPA to,
respectively, mandate new testing or the submission of existing
The hearing was the fifth the subcommittee has held on
TSCA during the 113th Congress. It was the last scheduled hearing, a committee
aide told Bloomberg BNA.
Committee members are using the information
gleaned from the hearings to craft a bill that would modernize the core
provisions of TSCA for the first time since it was signed into law by
President Gerald Ford in 1976.
River spill provided the backdrop for simultaneous hearings on both sides of
While the House subcommittee discussed TSCA, a Senate
Environment and Public Works subcommittee held a hearing, “Examination of the
Safety and Security of Drinking Water Supplies Following the Central West
Virginia Drinking Water Crisis.”
Sen. Joe Manchin (D-W.Va.) testified
before the Senate subcommittee.
Stricter chemical storage standards,
more frequent inspections and TSCA changes are needed to reduce the possibility
of other communities facing the problems with which Charleston and area West
Virginians have struggled, Manchin said. He recently shared similar remarks
with Bloomberg BNA.
Jennifer Sass, a
senior scientist with the Natural Resources Defense Council, testified before
the House subcommittee.
The recent spill in West Virginia has made the
impact of the information gaps in TSCA more visible, Sass said.
leaking of 4-methylcyclohexane methanol (MCHM) and other chemicals into the Elk
River in West Virginia brought home--literally--into people's homes the
disturbing reality that no useful information is available to the public or
those who serve them,” Sass said.
Sass highlighted two TSCA provisions
that she said prevent the EPA from obtaining needed data.
must essentially prove that a chemical poses an unreasonable risk to health or
the environment before it can require the needed testing that would show a
potential risk,” Sass said.
“This is like requiring a doctor to prove
that a patient has cancer before being able to order a biopsy. This 'Catch-22'
construction of the EPA's testing authority has greatly constrained the agency
from getting data through testing,” she said.
“Second, to require
testing of existing chemicals, EPA must complete a full formal rulemaking.
Other programs, including the pesticide program and even TSCA's new chemicals
program, instead allow EPA to require testing by issuing an order, a much more
streamlined process,” Sass said.
Drevna, president of the trade association American Fuel& Petrochemicals
Manufacturers, said “it is irrational to require a demonstration of
unreasonable risk before requiring test data that would help demonstrate that
risk. The finding of unreasonable risk should be deleted in Section 4.”
Beth Bosley, president of Boron Specialities, a small chemical manufacturing
company, said a major problem of Section 4 is its requirement that the EPA
issue regulations to obtain chemical data. Rulemaking frequently takes
Revising TSCA to give the agency authority to order data
submissions would help solve this problem, said Bosley, who testified on
behalf of the Society of Chemical Manufacturers & Affiliates.
Congress should not authorize blanket authority for the EPA to require
absolutely any data on any chemical, Bosley said.
should direct the agency to use a step-wise approach to obtain specific,
targeted data, Bosley said. A tiered strategy means the agency would order
preliminary, less expensive and quicker-to-obtain data that might rule out
risk before requiring more expensive and time-consuming data.
TSCA also should include mandates for the EPA to review a minimum number of
chemicals in commerce annually or a particular percentage of chemicals, she
Subcommittee Chairman Rep. John Shimkus (R-Ill.) said the EPA faces
another problem when it tries to get data through regulations: judicial
“We need to push beyond relitigating those cases and focus on
what authorities EPA has now or could reasonably use in the future to produce
tailored, necessary and high-quality tests data and other information to carry
out TSCA,” Shimkus said.
said several times that the EPA should be required to use a tiered, targeted
and risk-based strategy to require manufacturers to provide toxicity or other
Waxman asked whether the EPA has sufficient information
to use a risk-based strategy to obtain additional information it would need to
implement a tiered, targeted and risk-based strategy. Both toxicity and
exposure data are needed for analysts to determine the risk, or probability,
that a particular chemical or use of a chemical would be harmful.
said “exposure information is very, very expensive and difficult to get.”
That means the agency initially would have to rely on hazard information to
make decisions about whether it needed additional data, she said.
Sass and Robert Matthews, an attorney with McKenna, Long & Aldridge LLP,
who testified on behalf of the Consumer Specialty Products Association, said
the agency has quite a bit of hazard data it can use.
voiced concerns that legislation introduced in the Senate (S. 1009) might
impede efforts to help the agency get more needed data. Sen. David Vitter
(R-La.) and the late Sen. Frank Lautenberg (D-N.J.) introduced the Chemical
Safety Improvement Act, S. 1009, in 2013.
“The introduced bill would
prevent EPA from requiring testing for a chemical until [the chemical] has
already been identified as a high-priority substance,” Sass said. The agency
couldn't, however, require data on a low-priority chemical, she said.
The lack of exposure data likely would greatly reduce the number of
chemicals the agency could determine to be high priorities, she said.
“The Chemical Safety Improvement Act (S. 1009), as introduced, will not
solve the problems with current TSCA and in some respects will make things
worse,” Sass said.
Speaking for the Consumer
Specialty Products Association, which consists of companies that purchase
chemicals to make household and institutional products such as cleaners, air
fresheners and pesticides, Matthews reinforced the value of exposure data.
The EPA must have information about exposure to chemicals in commerce, he
Much of the information on how chemicals are used, and therefore
data that can help the agency estimate exposures, is in the hands of
downstream processors, Matthews said.
“CSPA supports the position that
in order to better inform EPA's understanding of exposure potential during
prioritization and subsequent safety assessments of high priority chemicals, a
modernized TSCA should expressly allow the agency to collect necessary
use-related information from downstream formulators of consumer and commercial
products,” he said.
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A video and copies of
submitted testimony are available at http://tinyurl.com/l5mprzm.
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