Draft TSCA Update Bill Called Good Start; Changes Planned Before May 14 Markup

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By Pat Rizzuto

April 14 — Some Toxic Substances Control Act requirements that have made it difficult for the Environmental Protection Agency to regulate harmful chemicals and led a federal court to overturn a 1989 ban of asbestos would be eliminated under a draft House bill that modernizes TSCA, agency, industry and environmental witnesses told a House subcommittee April 14.

“The discussion draft clearly removes TSCA's requirement that the EPA demonstrate it is using the least burdensome requirements needed to provide adequate protection,” Jim Jones, assistant administrator for chemical safety and pollution prevention, told the House Energy and Commerce Subcommittee on Environment and the Economy. TSCA's requirement that the agency select the least burdensome regulation was a key basis for the ruling by the U.S. Court of Appeals for the Fifth Circuit that overturned the agency's 1989 ban of asbestos (Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 33 ERC 1961 (5th Cir. 1991)).

“The bill provides a good starting point,” said Rep. Frank Pallone (D-N.J.), ranking member of the House Energy and Commerce committee. But, he added, “We still have a lot of work to do.”

Jones and Pallone spoke during an April 14 hearing on the draft TSCA Modernization Act, which Rep. John Shimkus (R-Ill.), chairman of the subcommittee, released April 7.

Shimkus said the draft legislation will be revised, introduced and scheduled for a May 14 markup.

Driving Risk Assessments 

The draft bill would provide the EPA more effective authority than it has under current law to compel chemical manufacturers to generate new toxicity or exposure data, Jones said.

The draft bill, however, would not direct fees it authorizes to fund the agency's chemical-management work; it includes an analytic “Catch-22” provision that would make it difficult for the EPA to assess the risks of any chemical with the potential to cause health or environmental harm; and the bill would put chemical manufacturers in charge of deciding which chemicals the EPA would evaluate for safety, Jones said.

The combination of those three provisions “could result in evaluations for the chemicals with the most potential for risk being put off indefinitely, while EPA works on the evaluations requested by industry,” Jones said.

In contrast to two bills introduced in the Senate to comprehensively overhaul TSCA, S. 697 and S. 725, the House draft bill would not require the EPA to evaluate the safety of all chemicals in commerce.

Instead, the bill would lay out two situations under which it would require the EPA to conduct a risk evaluation of a chemical in commerce.

First, if the EPA could show that it has a reasonable basis to conclude a chemical has the potential to pose an unreasonable risk to human health or the environment, then the agency would assess the chemical.

Second, the EPA would be required to conduct risk assessments if the manufacturer of a chemical requested the agency to do so and paid for the evaluation.

Requiring the agency to make an affirmative finding that a chemical has the potential to cause an unreasonable risk before it could start to evaluate the compound's risks, could create an analytical Catch-22, Jones said.

“This would likely lead to EPA focusing the majority of its limited risk evaluation resources on completing evaluations for chemical substances requested by industry,” he said.

Open Door to Litigation 

Under the draft TSCA Modernization Act, the EPA would consider health and environmental hazards and exposures solely—not regulatory costs—as it evaluates the safety of a chemical.

The draft bill is not clear, however, on the criteria the agency must use as it selects possible ways to manage risks it identified, Jones said.

“It's important to have a clear understanding of what the risk management standard is,” he said, adding that ambiguity would open the door for litigation.

Other concerns Jones raised during his testimony included deadlines he called unrealistic.

For example, he pointed to a provision in the draft bill that would require the EPA to complete a risk assessment requested by a chemical manufacturer within six months.

Jones also cited a provision of the draft that would require the EPA to publish a final rule on managing unreasonable chemical risks within six months of identifying them.

Shimkus, Pallone to Revise Draft 

Shimkus, Pallone and other committee members said they will work with the EPA to address some of the concerns Jones raised.

The intent, Shimkus said, is to enable the EPA to examine the safety of some chemicals already on the market.

“We don't t want to create an unmanageable bar,” Shimkus said.

He also said he was committed to ensuring that fees that the legislation generated would fund the EPA's chemicals work and not go into the federal government's treasury, as they would under the draft bill.

Andy Igrejas, director of Safer Chemicals, Healthy Families, told Bloomberg BNA after the hearing that such assurances are why the coalition of advocacy groups he represents are supporting aspects of the draft bill. Safer Chemicals represents about 450 environmental health organizations, unions and some companies that seek market recognition for making products with what they say are safer chemicals.

“We do not support the draft in its current form, but with revisions we could,” Igrejas testified.

The cautious support is a notable departure from strong objections Safer Chemicals has raised about the Frank R. Lautenberg Chemical Safety for the 21st Century Act that Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) introduced March 10.

Igrejas's testimony pointed out many of the same concerns about the House draft that EPA's Jones had raised.

Trade Associations Praise Draft 

Before, during and after the hearing, trade associations representing several different manufacturing sectors praised the House draft.

Michael Walls, vice president of regulatory and technical affairs at the American Chemistry Council, detailed 10 reasons the draft would improve oversight of chemicals, including:

• a mandate that the EPA evaluate risks based solely on the basis of health and environmental considerations;

• a requirement that the agency fully consider potentially exposed subpopulations that could face greater risk than the general population, as it evaluates risks and determines, if needed, risk management measures;

• work toward balancing the interests of the state and federal governments by establishing a robust national chemical regulatory program and maintaining the ability of state governments to act when EPA has not.

 

In a letter to the subcommittee, the American Cleaning Institute, which represents chemical formulators, urged prompt action on the draft.

“This draft legislation, along with the bipartisan legislation in the U.S. Senate, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), are important milestones in the effort to strengthen and modernize our nation’s premier chemical management law,” Ernest Rosenberg, president of the cleaning institute, wrote in a letter to Shimkus and Rep. Paul Tonko (D-N.Y.), ranking member of the Environment and the Economy Subcommittee.

The Alliance of Automobile Manufacturers; Consumer Specialty Products Association; International Fragrance Association, North America; and the Society of Chemical Manufacturers & Affiliates either testified in support of the approach the House draft has taken or issued statements supporting it.

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

Opening statements and testimony delivered at the TSCA hearing are available athttp://energycommerce.house.gov/hearing/hr-tsca-modernization-act-2015.

The American Cleaning Institute's letter is available at http://op.bna.com/env.nsf/r?Open=prio-9vkscc.