Coatings and chemical makers have come out swinging against a new Senate proposal that would overhaul the Toxic Substances Control Act to shift the 35-year-old burden of chemical safety proof to manufacturers.
The Safe Chemicals Act of 2011, introduced April 14 by Sen. Frank Lautenberg (D-NJ), is “a long-overdue modernization” of TSCA, which has not been amended since it was adopted in 1976, said Lautenberg, who chairs the Senate Subcommittee on Superfund, Toxics, and Environmental Health.
Currently, chemical companies need not—and typically do not—perform toxicity testing on the approximately 700 new chemicals introduced into commerce annually. EPA currently has more than 80,000 chemicals on its inventory.
Proof of ‘Unreasonable Risk’
Instead, TSCA requires EPA to demonstrate “unreasonable risk” before regulating a chemical—a burden the agency has met only five times since TSCA was enacted.
In 1991, a federal appeals court even threw out EPA’s 1989 attempt to regulate most uses of asbestos—banned by the European Union and other countries—saying the proposal was not based on “substantial evidence.”
|The bill would restrict the ability of manufacturers to keep some chemical safety data confidential.|
The U.S. Government Accountability Office has recommended several times that Congress amend TSCA to reduce the evidentiary burden EPA must meet to control toxic substances. In January 2009, GAO added TSCA to its “high risk” areas of the law.
EPA challenges to chemical safety can take years, due to the procedures required in obtaining test data from companies, GAO notes. About 95% of the notices companies provide to EPA on new chemicals contain some information claimed as confidential. Evaluating these claims is time- and resource-intensive, and EPA does not challenge most of them, GAO says.
Lautenberg’s bill would address what the senator calls “each of the core failings of TSCA,” beginning with shifting the burden of proof on safety. The measure would:
- Require chemical companies to develop and submit a minimum data set for each chemical they produce and authorize EPA to require any data beyond that to determine a chemical’s safety.
Chemical companies would have to demonstrate the safety of industrial chemicals, and the EPA would evaluate safety based on the best available science.
- Require EPA to prioritize chemicals based on risk. The agency would conduct an evaluation to place chemicals into one of three classes: immediate risk management, safety standard determination, and no immediate action. (Some chemicals will not meet the criteria to be placed in a class.)
Persistent, bioaccumulative and toxic chemicals with the potential for widespread exposure will be considered the highest risk, and EPA would then impose conditions to immediately reduce exposure.
Chemicals in the second category would require EPA to perform more testing and risk assessment. If the chemical cannot meet the safety standard, it could not remain on the market.
- Establish a public database with chemical information submitted to EPA and decisions made by EPA.
- Restrict the conditions under manufacturers can claim data as confidential business information (CBI), “while still ensuring appropriate protections for legitimate CBI.”
- Require EPA to establish an incentive program for safer alternatives and a grant program to develop alternatives for priority hazardous chemicals.
No companion bill has yet been introduced in the House, but coatings and chemicals manufacturers are already making their opposition clear. The American Coatings Association, which represents manufacturers, and the American Chemistry Council, a lobbying group, have both come out against the measure.
ACA calls the bill “even more exacting” than a similar bill that failed last year. “The burden is placed squarely on industry to prove safety,” ACA notes on its web site.
In a statement, ACA said it was “particularly concerned about how [the bill] may impact America’s manufacturing base….”
|Cal Dooley, of the American Chemistry Council, says the measure will “hamper innovation.”|
Cal Dooley, president and CEO of the American Chemistry Council, said the bill's proposed decision-making standard “may be legally and technically impossible to meet."
The changes “could hamper innovation in new products, processes and technologies,” Dooley said. “In addition, the bill undermines business certainty by allowing states to adopt their own regulations and create a lack of regulatory uniformity for chemicals and the products that use them."
Both ACA and ACC say they are committed to modernizing TSCA, but that Lautenberg’s bill overreaches. Said Dooley: “Unfortunately, it appears many of our concerns have not been addressed in this new version, and the bill introduced today could put American innovation and jobs at risk.”