INSIGHT: Congress facing an Olympian task in reforming TSCA

13 March 2014 14:00 Source:ICIS News

TSCA reform a task to tax even Zeus himselfBy Joe Kamalick

WASHINGTON (ICIS)--If testimony this week in the US House is any guide, Congress, industry, environmentalists and unions face a struggle equal to any in Greek mythology to find common ground in reforming federal controls for chemicals in commerce.

In the first hearing on Wednesday for the House version of legislation to replace the Toxic Substances Control Act (TSCA), the greens and chemicals sector officials were light years apart in their appraisals for the newly aired “Chemicals in Commerce Act” (CICA).

In witness testimony before the House Subcommittee on Environment and the Economy, chemical company owner Beth Bosley hailed the proposed CICA as “a very workable, good-faith vehicle for bipartisan TSCA reform”.

On the other side, Michael Belliveau of the Environmental Health Strategy Center (EHSC), broadly condemned CICA, charging that if enacted as drafted it “would endanger public health and the environment”.

CICA was first aired last month as a discussion draft by its principal sponsor, Representative John Shimkus (Republican-Illinois), chairman of the panel that heard Wednesday’s testimony.

A similar bill, S-1009, the “Chemical Safety Improvement Act” (CSIA), was introduced in the US Senate in May last year and is still pending.

That measure too, said Belliveau, poses an equal threat to human health and the environment. The two bills combined would, he charged, effectively wipe away what environmental protections there are in TSCA, which many greens regard as largely useless in the first place.

Bosley, president of Boron Specialties and speaking on behalf of the Society of Chemical Manufacturers and Affiliates (SOCMA), said she was pleased to see that the House bill shared many features with the bipartisan Senate measure, adding that CICA “is a clear improvement over the status quo”.

Virtually all stakeholders - producers, distributors, greens, labour and regulators - agree that the 38-year-old TSCA is badly out of date and in need of major modernisation.

But beyond that starting point, stakeholder champions quickly part ways and seek outcomes that couldn’t be much more different.

Bosley hailed the House bill for “preserving the delicate balance in existing law between the opportunity to innovate and protecting human health and the environment”.

She also welcomed the bill’s protections for companies’ confidential business information (CBI), a major point of concern for chemicals manufacturers in general.

Bosley and other industry witnesses welcomed CICA’s provisions to break the inventory of “chemicals in commerce” into active and inactive lists and to focus safety reviews by the Environmental Protection Agency (EPA) on chemicals in current use.

However, she urged that CICA require, as does CSIA, that EPA considers non-adverse information from producers in addition to adverse data when reviewing a chemical product.

Bosley was joined by Dow Chemical executive Connie DeFord in seeing CICA as “a significant step forward for our federal chemical management system”.

DeFord, director of global product sustainability and compliance at Dow, said that the Shimkus bill “largely maintains the successful new chemicals program [under TSCA], which is a model for the world”.

“It would protect legitimate confidential business information,” she said, and “ensure a fair and equitable testing burden among relevant parties.”

She urged the subcommittee to “improve, approve and move this bill so that enactment of TSCA reform becomes a reality this year”.

Roger Harris, president of Producers Chemical Company, also welcomed CICA as “a thoughtful and significant step towards the enactment of sensible chemicals management policy”.

Speaking for the National Association of Chemical Distributors (NACD), Harris had particular praise for provisions in CICA for federal pre-emption of state laws regulating chemicals in commerce.

“NACD supports congressional action to develop a federal approach that minimises the need for state laws and ensures potentially conflicting state approaches do not interfere with national markets,” Harris said.

He argued that once EPA has taken regulatory action on a given substance, “it does not make sense to allow a state to take contradictory action”.

But the pre-emption provisions in CICA came under heavy fire from Belliveau, who argued that both CICA and the Senate bill “violate states’ rights to protect their citizens from toxic chemicals”.

Belliveau, who also serves as a senior advisor to the Safer Chemicals, Healthy Families coalition, said that CICA and CSIA not only fail to improve control of chemicals in commerce but actually eliminate protections now available under TSCA.

“Both bills roll back current law,” he said, because under both “many chemicals will remain untested” and the bills will “weaken the review of new chemicals”.

Listing a litany of fatal flaws, he also charged that both measures roll back current law provisions on chemicals in consumer products, fail to require expedited action on chemicals of high concern, set aside thousands of chemicals as “low priority” without adequate review and “maintain a veil of secrecy over critical chemical information”.

The bills, he said, would maintain an onerous burden on EPA in restricting existing chemicals and hobble the agency’s ability to timely exercise its scientific judgement.

In addition, “both bills lack adequate deadlines and resources [for EPA] to drive serious progress”, he said.

Anna Fendley, legislative representative for the United Steel Workers (USW) union, highlighted both the environmental and trade importance of TSCA reform.

Citing the EU “Reach” programme and other more stringent chemical controls policies in Japan, South Korea and China, she warned that: “Unless the US passes more protective chemical safety laws, manufacturers in the US may be unable to export to parts of the world with more protective laws”.

“Consumers could ultimately come to trust products from other parts of the world more than those made domestically,” she said, reflecting a concern voiced earlier by chemicals sector leaders.

She added, however, that “while the issues of chemical industry competitiveness and consumer confidence are important considerations for reform, protecting public health must be the primary goal”.

Fendley pointed out that chemical sector workers, many of whom are represented by USW, typically are on the front line of exposure, much like the “canaries in coal mines” that were first to fall when hazards arose.

She argued that TSCA reform must ensure that the industry’s employees have the right to know the risks they face, and plant workers should have whistle-blower protection and the right to court action.

CICA, she said, fails to address USW concerns.

“CICA would merely amend, not reform TSCA and would result in a less protective, less functional federal system for assessing and restricting industrial chemicals,” she said.

Fendley charged that in fact “CICA is a step backwards, not a step forward”.

Recognising that not everyone is pleased with approaches being taken in both the Senate and House TSCA reform bills, chemical sector executive Bosley urged that congressional consideration of the legistlation not let “the perfect be the enemy of the good”.

“If we are ever to see a TSCA bill enacted, we must realise that it will never be all things to all people,” she said.

Right now, though, bridging the gulf between the environmental and labour communities on one side and industry on the other seems to be a task to tax even the powers of Zeus himself.

Paul Hodges studies key influences shaping the chemical industry in Chemicals and the Economy

By Joe Kamalick