EPA Voices Preferences on TSCA Overhaul Bills

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By Pat Rizzuto

March 3 — The Environmental Protection Agency prefers the clarity of the chemical safety standard provided in the Senate's bill to update the Toxic Substances Control Act, compared to the uncertainty that could be created by the different standards that could be set under the House's TSCA modernization bill, according to a letter the EPA's administrator has sent members of Congress.

The EPA also prefers the regulatory approach the Senate bill would require for new chemicals and its strategy for funding the agency's oversight of chemicals, EPA Administrator Gina McCarthy wrote in the Jan. 20 letter to members of Congress obtained by Bloomberg BNA March 3.

The agency, however, “strongly prefers” the implementation provisions of the House's TSCA Modernization Act (H.R. 2576) rather than the “pressing deadlines” required by the Senate's Frank R. Lautenberg Chemical Safety for the 21st Century Act, McCarthy said. The Senate bill was numbered S. 697, but it was approved unanimously in December as S. Admt. 2932 to H.R. 2576.

“The lack of a workable safety standard, deadlines to review and act on existing chemicals, and a consistent source of funding are all fundamental flaws in TSCA that should be addressed,” McCarthy said in the letter.

The administration hasn't publicly voiced a preference for either the House or Senate bill making McCarthy's letter of particular interest.

Many industries could have the products they make or use affected if Congress approves, and the president signs, a bill that would revise TSCA for the first time since 1976. TSCA oversees chemicals in commerce, meaning it can help determine the chemicals, plastics and other materials available to companies that make the consumer and industrial products society relies upon. The law also affects human health and the environment through the decisions the EPA makes about what chemicals may enter commerce.

Chemicals in Commerce Called Key

Requirements TSCA imposes on the EPA, however, have meant the agency has had limited success obtaining toxicity, exposure and other data it would need to oversee the safety of chemicals already in commerce or to regulate those chemicals in commerce with uses that pose health or environmental risks.

Public confidence in the U.S. regulatory system has waned over the years, the American Chemistry Council said.

States and retailers, such as Wal-Mart Stores Inc. and the Target Corp., have stepped into the regulatory vacuum, for example, by barring certain chemicals from their jurisdictions or shelves.

Similar to other recent analyses of the TSCA-reform bills, the EPA's letter doesn't endorse one chamber's bill over the other although it supported more provisions of the Senate's bill than the House's. The Senate bill resulted from more than two years of negotiations among Republicans and Democrats led by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.).

The EPA's letter described provisions of each bill it prefers and tied its preferences to TSCA-reform principles the agency released in 2009 .

EPA Describes Aspects It Likes

The EPA also described aspects of both bills it supports, such as their proposed elimination of TSCA's “least burdensome” requirement. The law's mandate that the EPA select the least burdensome regulatory option to manage a risk was a key aspect of the U.S. Court of Appeals for the Fifth Circuit ruling in 1991 that overturned the agency's regulation that would have severely restricted uses of asbestos (Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 33 ERC 1961 (5th Cir. 1991)).

As the EPA did, state organizations, state attorneys general and the American Alliance for Innovation, a coalition of more than 150 trade associations, have voiced support and opposition in recent weeks to divergent positions in the two chambers' bills or issued general priorities.

More than 21,000 state legislators across the country signed onto a March 2 letter circulated by the Union of Concerned Scientists.

Provisions Needed

“A good chemical safety law must include enforceable deadlines for the Environmental Protection Agency (EPA) to act on the most dangerous chemicals, “ the letter said. Additionally, the state legislators' letter called for the following:

“It must provide the agency with the resources to do its job.

“It must give the states the most flexibility to address chemical dangers that the EPA has not yet acted on.

“It must ensure that vulnerable populations, such as workers, people living in fence-line communities, the elderly and pregnant women, are adequately protected.

“And it must allow the EPA to use its legal authority to use the best available science without interference from Congress.”

Twelve state attorneys general circulated their analysis of the two bills Jan. 21 .

The Environmental Council of the States circulated an analysis on Jan. 7 .

Industry Alliance: Take Care in Merging Bills

In a Feb. 29 letter to House and Senate leaders, the American Alliance for Innovation didn't specifically identify whether the priorities it supports in a merged TSCA-reform bill are in the House bill, Senate bill or both.

It instead urged Congress to take care as it combines the two bills.

“Simply cutting and pasting sections of one bill into another without considering effects on the remaining pieces of the final product could be confusing and problematic,” the alliance said.

With assistance from Anthony Adragna in Washington

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

For More Information

The EPA's letter is available at http://src.bna.com/c27.

The state legislators' letter is available at http://src.bna.com/c31.

The American Alliance for Innovation's letter is available at http://src.bna.com/c3U while its priorities are listed at http://src.bna.com/c3W.