Lawmakers seek to move quickly on new toxics bill, but challenges remain

House and Senate Democrats yesterday unveiled landmark chemical policy reforms they are pushing to get passed this year, but that is no sure thing thanks to a dwindling legislative calendar and some key sticking points.

The bills would require manufacturers to provide information about chemicals in consumer products instead of presuming substances are safe until proven dangerous, a major change from the 1976 Toxic Substances Control Act, or TSCA. While several industry, public health and environmental groups have praised the bill thus far, defining the chemical safety standard and determining how it will be implemented will be major challenges.

Rep. Bobby Rush (D-Ill.) and Energy and Commerce Chairman Henry Waxman (D-Calif.), along with Sen. Frank Lautenberg (D-N.J.) yesterday released legislative language that would for the first time revise TSCA, the only environmental statute that has not been amended since it was enacted.

In a marked shift from current practice, the language from both the House and the Senate measures would require manufacturers to provide a minimum data set for each chemical they produce, and U.S. EPA would have the authority to request any additional data it deems necessary to make a safety determination.

EPA would also be required to prioritize chemicals based on hazard and exposure characteristics. EPA would be directed to take quick action on those chemicals that clearly demonstrate high risk, and manufacturers would have to prove that a chemical is safe to keep it on the market.


Rush and Waxman sent a memo to committee staff and members seeking feedback on their discussion draft over the next six weeks, according to a staff member, and Rush said there is no deadline but that it could happen by Memorial Day.

"We want to get it moving quickly, but we're looking for substance over speed," said Rush, chairman of the Commerce, Trade and Consumer Protection Subcommittee.

On the Senate side, there is not yet a formal process laid out, but a Lautenberg aide said the senator is focused now on trying to find Republican support.

"The senator's mission now is to build a strong bipartisan coalition that can push this bill across the finish line this year," the aide said in an e-mail. "The senator will be reaching out to his colleagues on both sides of the aisle, and we believe they will be receptive. Fixing the broken chemical regulatory system benefits everybody."

Fault lines

The Senate bill and the House draft have thus far garnered widespread support from environmental, public health and industry groups for establishing a risk-based approach to evaluating safety and for setting up a system for prioritizing the tens of thousands of chemicals currently on the market.

"We look at both efforts as really embodying a constructive approach to trying to respond to some of significant challenges in trying to modernize TSCA," said Cal Dooley, president and CEO of the American Chemistry Council.

"This legislative language is a pretty monumental sea change from the status quo," added Richard Denison, a senior scientist at the Environmental Defense Fund.

There are, however, already several fault lines emerging.

For one, the chemistry council expressed concern with the proposed safety standard, which would require that all chemicals meet a safety determination that "provides reasonable certainty of no harm" and that takes into account aggregate and cumulative exposures, as well as potential exposures to vulnerable subpopulations.

The current definition says EPA must show why it believes a chemical poses a health threat and must use the least burdensome alternative to restrict a chemical's use.

"The reasonable certainty of no harm -- that's a concern," Dooley said. "The challenge policymakers are going to have to address is that if you do accept ... that you need a science-based, risk-based approach, what is the level of risk that is going to be embodied in 'certainty of no harm'? What is going to be that risk factor as a society we're willing to accept?"

But Denison said that although the bill language does not go into much detail about how the safety standard would work, the proposed change would make the standard health-based, a shift from current practices.

Alan Greene, a pediatrics professor at the Stanford School of Medicine, said the proposed change to the safety standard was based on one laid out in the 1996 Food Quality Protection Act, which set a standard for pesticide exposure -- meaning that EPA already has the necessary experience to implement the change.

"They're relying on ideas that have proven to work in other sectors," Greene said. "With the standard of safety, we've had the experience since 1996 of knowing what that looks like."

Dooley countered that the standard for pesticide exposure may not be appropriate for industrial chemicals, given that for pesticides, a chemical is generally used in one product for a specific purpose, whereas an industrial chemical may be present in a thousand products, all of with different exposure pathways.

The Society of Chemical Manufacturers and Affiliates said it supported the bill's provisions to protect vulnerable groups such as children but said many of its members would struggle with the new safety standard since they manufacture intermediates, which may have limited exposures and many possible unknown uses.

The group also criticized the minimum data set requirement in both documents. "Both of these issues would prove to create a highly burdensome and time consuming process that would negatively impact innovation, which is paramount to ensuring the ability to develop safer chemicals," it said in a statement.

Industry groups are also critical of a provision allowing states to adopt their own regulations, which they say will create a lack of regulatory uniformity.

Meanwhile, environmental and public health groups said they would push lawmakers to go further on some of the provisions to ensure greater protection for human health and the environment.

Denison, for example, expressed concern with language that would allow certain new chemicals to enter the market before being assessed for their safety. Ultimately all chemicals would have to be assessed, but the bills would allow new chemicals that were not flagged by certain criteria to enter the market and be assessed at a later date.

"It makes no sense to provide such a huge loophole for hundreds of new chemicals and seems to contradict the purpose of this landmark legislation," added Maureen Swanson from the Learning Disabilities Association of America, which is part of the environmental coalition.

Environmental groups also pointed to a clause in the Senate bill directing EPA to "act quickly" to manage risks for the highest-concern chemicals, while the House draft calls for an expedited safety determination within one year for certain persistent, bioaccumulative and toxic chemicals.

"We believe EPA should have the authority to act on the worst of the worst chemicals without having to go through a full-blown safety determination for a handful of chemicals," Denison said.

Click here to read the Senate bill.

Click here to read the House Energy and Commerce Committee discussion draft bill.

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