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By Pat Rizzuto
Nov. 13 --Legislators crafting a bill to modernize the Toxic Substances Control Act should ensure that the legislation includes deadlines by which the Environmental Protection Agency must complete its analyses of chemicals if they want the agency to make timely decisions about whether those chemicals are safe or have risks that should be managed, a senior agency official told a House subcommittee Nov. 13.
The firm deadlines Congress included in the Food Quality Protection Act of 1996, which regulated pesticides used on crops, helped the EPA assess thousands of food-use pesticide residue levels within the 10-year timeframe required under that law, Jim Jones, assistant EPA administrator for chemical safety and pollution prevention, told the House Energy and Commerce Subcommittee on Environment and the Economy.
Without meaningful legal deadlines, it could take EPA years between the time it determines a chemical wouldn't meet a revised law's safety standard and any regulation the agency could issue to manage identified risks, Jones said.
As the agency has for pesticides, the agency will need sustained funding to implement new requirements TSCA-reform legislation is expected to impose, Jones said.
In a rare reach across the divide that often separates House and Senate legislative activities, the House subcommittee held a hearing on S. 1009, the Chemical Safety Improvement Act, which Sen. David Vitter (R-La.) and the late Sen. Frank Lautenberg (D-N.J.) introduced in May to overhaul the Toxic Substances Control Act
The bill would require the EPA--for the first time--to systematically review the safety of all chemicals in commerce and to prioritize its work on chemicals to focus first on those posing the greatest potential risk.
S. 1009 also would give the EPA authority to order chemical manufacturers to provide toxicity data and other information for those chemical reviews.
TSCA currently allows the agency to obtain data through regulations, but it can take years for the agency to complete the analyses needed to meet the law's burden of proof to proceed with regulations, and it takes additional years to issue such regulations.
Sen. Tom Udall (D-N.M.), who is championing S. 1009 in the Senate, and Vitter testified before the House subcommittee.
Each said the introduced version of the bill has shortcomings they are working to address.
If all interested parties work together, Vitter said, “we will achieve a compromise that not only enhances business certainty and creates a strong federal chemicals management system, but also sets meaningful deadlines, protects the most vulnerable among us, effectively screens all active chemicals in commerce, guarantees Americans' access to private rights of action and legal remedies, and makes certain that EPA has the tools necessary to ensure the chemicals that we are all exposed to are safe.”
Udall told the subcommittee, “We have a historic opportunity before us. Success is far from certain, but I am optimistic.”
Trade associations that have supported the legislation have said a strong, updated federal chemicals law could increase consumers' trust in the safety of chemicals in the products they use while decreasing the incentives for states to regulate chemicals and for retailers and other businesses to restrict certain chemicals or groups of chemicals.
In addition to Jones, the subcommittee heard from the American Chemistry Council, which represents chemical manufacturers; the American Cleaning Institute, which represents companies that mix chemicals to formulate cleaning and other products; the Information Technology Industry Council, which represents the information and communications technology sector; the Environmental Defense Fund; Safer Chemicals, Healthy Families; and a legal scholar who has long analyzed federal agencies' use of science.
Cal Dooley, president and chief executive officer of the American Chemistry Council; Ernie Rosenberg, president and CEO of the American Cleaning Institute; and Dean Garfield, president and CEO of the Information Technology Industry Council, all supported S. 1009.
Dooley commented on the extensive work it required to achieve a bill that not only has bipartisan support but also has been backed by unions, retailers and other parties that traditionally haven't weighed in on chemical issues.
The bill is not perfect, and legislators should address legitimate concerns some environmental and public health organizations are raising about the legislation, he said.
“We support efforts to find common ground and believe it is achievable, but don't upset the delicate balance that has been established,” he said.
Jones, who manages the EPA's chemicals and pesticide offices, raised concerns about certain aspects of S. 1009, including its lack of deadlines, its lack of sustained funding for the EPA to implement its requirements and procedural requirements it would establish that could hinder the agency's ability to make timely decisions about chemicals.
The EPA would complete its reviews of chemicals under deadlines S. 1009 would authorize the agency to set based on resource availability, among other factors. The Senate bill doesn't set deadlines for the agency to complete those reviews.
“It requires EPA to set deadlines, but it gives us unlimited opportunities to change those deadlines,” Jones said.
Jones also urged legislators to clearly define terms used in S. 1009.
For example, the bill would require the EPA to determine whether chemicals meet a safety standard, which it defines as meaning no “unreasonable risk of harm to human health or the environment” would result from exposure to the chemical being evaluated.
The term “unreasonable risk” has distinctly different meanings to different parties, Jones said.
Adding to the problem of S. 1009's lack of deadlines and unclear use of important terms, said Richard Denison, a senior scientist with the Environmental Defense Fund, are the numerous procedures the bill would require the EPA to follow and guidance documents the agency would have to prepare before it could make safety decisions about chemicals.
Those procedural requirements mean that it could take the EPA more than seven years to complete its first determination of whether a chemical is safe, Denison said.
The procedural requirements also “would all but invite legal challenges by parties unhappy with one or another aspect” of the EPA's implementation of the law, he said.
Wendy Wagner, a law professor at the University of Texas School of Law, said S. 1009 would unduly restrict the types of scientific evidence that the EPA could consider as it determines the safety of chemicals.
The constraints of the legislation would be inconsistent with recommendations the National Academies has made about the science the EPA should use to underly its decisions on chemicals, she said.
“By my count, at least 40 pages of Senate Bill 1009 are dedicated to developing these legislative constraints on the types of evidence EPA may consider and how it must use this evidence,” she said.
Those requirements would create opportunities for some manufacturers to claim the agency failed to implement the law correctly, Wagner said.
Jones said the numerous procedural and analytic requirements in the bill could translate into “paralysis by analysis.” Critics of TSCA have said the law needs to be overhauled to ease the agency's ability to make its decisions.
The flaws witnesses identified in S. 1009 can be addressed, Denison said.
The bill “contains many elements of effective reform but needs significant changes if it is to actually deliver those reforms,” he said. “I am convinced the problems can be addressed while retaining bipartisan support.”
In interviews on Nov. 12 and 13, Denison told Bloomberg BNA he is optimistic that TSCA reform can be achieved in this Congress.
Three types of work are ahead, Denison said.
First, legislators need to clarify language subject to divergent interpretation, he said.
Second, procedural requirements need to be streamlined, he said.
Those two steps are manageable, Denison said.
The hardest, but a critical step, will be for legislators and other parties interested in updating TSCA to craft a balance on tough issues such as how to protect confidential business information while providing the public access to information on chemicals and how to craft a strong federal bill that also provides states the right to protect their residents, he said.
A House Energy and Commerce Committee aide told Bloomberg BNA the subcommittee anticipates holding another hearing on TSCA reform in early 2014.
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Information about the hearing and links to testimony are available at http://energycommerce.house.gov/hearing/s-1009-chemical-safety-improvement-act.
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