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Data Deficit on Elk River Chemicals Shows Need for TSCA Reform, Legislators Say

Wednesday, February 5, 2014

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.

West Virginia 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.

“That disaster illustrates the serious problems of current law,” Waxman said.

The House 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 information.

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.

House, Senate Hearings

The Elk River spill provided the backdrop for simultaneous hearings on both sides of Capitol Hill.

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.

Obstacles to Getting Data

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.

“The 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.

“First, EPA 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.

Solutions Offered

Charles 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 years.

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.

Rather, legislators 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.

A revised 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 said.

Subcommittee Chairman Rep. John Shimkus (R-Ill.) said the EPA faces another problem when it tries to get data through regulations: judicial challenges.

“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.

Risk-Based Strategy Feasible?

Drevna 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 chemical data.

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.

Sass 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.

Both 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.

Sass, however, 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.

Processors

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 said.

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.

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com


A video and copies of submitted testimony are available at http://tinyurl.com/l5mprzm.

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