Richard Denison Testifies On The Chemical Safety Improvement Act of 2013
This was written by Richard A. Denison, Ph.D., Senior Scientist, Environmental Defense Fund, and delivered before the U.S. House Committee on Energy and Commerce at a November 13th, 2013 hearing on The Chemical Safety Improvement Act of 2013: My organization has been working to reform the Toxic Substances Control Act (TSCA) for nearly 20 years and I have personally been engaged in this effort for well over a decade. We have made this investment because we are convinced that this outmoded law is not protecting American families, workers and communities from toxic chemical exposures. The need for reform is urgent, even more so than when we began this work. Emerging science increasingly links certain chemical exposures to the rising incidence of serious chronic health problems such as infertility, diabetes, childhood cancers and even learning disabilities. So in recent years we have redoubled our efforts to reform TSCA, the core provisions of which have not been touched in nearly 40 years. Today, there is almost universal agreement that the current law simply does not work: It is not protecting American families, workers and communities from toxic chemicals; it is not providing the market with the information needed to inform decisions and drive innovation toward safer chemicals; and it is not providing the consumer confidence and market predictability that companies need to run their businesses. In May of this year, we saw a breakthrough: For the first time, bipartisan reform legislation was introduced in the Senate, and the bill now enjoys co-sponsorship by one-quarter of the Senate, 12 Democrats and 13 Republicans. EDF welcomed the introduction of the Chemical Safety Improvement Act (CSIA) because it offers the first viable path toward actually passing reform legislation. In addition, the bill as introduced contains many of the elements of effective reform – although, as I will explain, as drafted it needs significant changes if it is to actually deliver the promised reforms. EDF and many others have identified a number of serious concerns with CSIA that must be addressed, a few of which I’ll discuss in a moment. But I am convinced that the problems are fixable and can be addressed in a manner that ensures protection of public health while retaining bipartisan support critical to passage of the legislation. Many, if not most, of the improvements we seek will benefit all parties by creating an effective and efficient system that protects public health and restores market and consumer confidence in the chemical and related industries and their products. I’ve attached to my testimony a side-by-side comparison of TSCA and CSIA, highlighting both strengths and weaknesses of the bill. Let me now highlight some of the ways in which CSIA addresses major flaws in the current law. CSIA mandates safety reviews of all chemicals already in commerce: When TSCA passed in 1976, it grandfathered in some 62,000 chemicals already in commerce – which still account for the bulk of chemicals in active use today – and gave EPA no mandate to review them for safety. As a corollary, it falsely equated the lack of any safety data on the great majority of those chemicals with a lack of risk. CSIA for the first time would require EPA to review the safety of all chemicals in active commerce. And it makes a lack of safety data a basis for designating a chemical high-priority, which triggers EPA’s authority to require testing and a mandate to conduct a formal safety assessment and safety determination for the chemical. CSIA tackles the key problems in TSCA’s “unreasonable risk” standard: TSCA’s “unreasonable risk” cost-benefit standard is widely regarded to have failed for two main reasons. First, it blurs together what should be two distinct decisions: a science-based decision as to whether a chemical poses a significant risk; and a risk management decision as to how to address such risks where they are found. Second, it forces EPA to engage in paralysis-by-analysis by requiring it to prove that any action it proposes to take is the “least burdensome” of all possible options for each and every use of a chemical. CSIA tackles both problems: It clarifies that the “unreasonable risk” standard is to be applied “based solely on considerations of risk to human health and the environment;” except in the case of complete bans or phase-outs, consideration of costs and benefits is relegated to a separate risk management stage. And it strikes the paralyzing “least burdensome” provision. CSIA requires that a new chemical be found likely to meet the safety standard before market entry: Under TSCA, new chemicals undergo a cursory pre-manufacture review, and no affirmative safety decision is required before they can enter the market. And in the review, the burden is on EPA to find a concern – hard to do when safety data are not required – in order to halt, slow or limit market entry. CSIA for the first time would require EPA to make an affirmative finding of likely safety as a condition for the manufacture of a new chemical to commence. And while EPA still could not directly require safety testing of new chemicals, it could suspend its review pending submission of needed data, or impose conditions needed to provide the requisite assurance of likely safety in the absence of such data. 6 CSIA allows EPA to require testing by issuing orders: Under TSCA, EPA must promulgate a regulation in order to require a company to conduct safety testing of a chemical it makes or uses. Moreover, to require testing, EPA has to show potential risk or high exposure – a Catch-22, given that testing would typically be the way EPA would get the data needed to make such findings! This process is resource-intensive and typically takes many years. CSIA would authorize EPA to issue orders to require testing. Using orders avoids the onerous rulemaking process and subsequent court challenges. While EPA would have to justify why it is using an order rather than a rule or consent agreement, it would not need to make risk findings to order testing of a chemical. CSIA grants State and local governments and medical personnel access to confidential business information (CBI), subject to confidentiality agreements: Under TSCA, EPA is forbidden from sharing CBI with other levels of government, denying them access to information vital to their ability to assure the health and welfare of their citizens. And even in emergency situations, TSCA denies doctors, nurses, even staff in poison control centers, access to information – such as the confidential identity of a chemical to which a child or worker has been exposed – that could literally save lives. CSIA would for the first time grant access to such information to those outside the Federal government who need it most. That’s the good news. Unfortunately, the bill as drafted also would erect major obstacles that would impede EPA’s ability to effectively and efficiently utilize these tools. And it would unduly limit the authority of states to act to address chemical risks, often long before EPA has acted to address those risks. Among the major concerns that need to be addressed as the bill moves through the legislative process are the following: The safety standard must ensure protection of vulnerable populations and require that the multiple sources of exposure to chemicals be taken into account. One thing we have learned since TSCA first passed in 1976 is that certain individuals and populations are either more heavily exposed to chemicals or more susceptible to their effects than the population as a whole. These include the developing fetus and infants, as well as workers or those with pre-existing medical conditions. And they include “hotspot” communities that have disproportionately high exposure, often because they are exposed to chemicals from multiple sources. EPA’s authority to require testing when reviewing new chemicals and prioritizing data-poor chemicals needs to be restored. As noted earlier, CSIA would reduce the procedural and evidentiary burdens on EPA to require testing. However, it would severely limit the purposes for which testing could be required: Testing could only be required to inform safety assessments and determinations for existing chemicals, and EPA is explicitly barred from requiring testing of new chemicals and to inform prioritization of existing chemicals. This is a major step backward from current TSCA. The arbitrary restriction on testing in CSIA would lead to one of two outcomes that would be good for no one: either EPA would be forced to allow chemicals for which insufficient data exist to assess their safety to enter or remain on the market; or it would have to deny market access to or waste resources assessing chemicals that more data would show pose little or no risk. The bill’s sweeping pre-emption of state authority needs to be significantly narrowed. Foremost among the concerns about the bill as drafted is that by EPA merely designating a chemical as high- or low-priority, all States would be precluded from imposing a new requirement on the chemical. For a high-priority chemical, this pre-emption of State authority would happen long before, likely many years before, EPA took any action to address risks posed by that chemical. And for a low-priority chemical, States that disagree with EPA’s decision would have no recourse because even though the low-priority designation would effectively be a final agency action, it would not be subject to judicial challenge. That’s not only bad policy, it’s bad for the practice of government. Under the bill as drafted, pre-emption of pre-existing state requirements is triggered merely by EPA’s issuance of a safety determination. For a chemical EPA finds does not meet the safety standard, State requirements would be voided well before EPA takes final action to address the risks of the chemical. Long-standing authorities of states to enact requirements identical to those of Federal agencies for purposes of co-enforcement would also be eliminated, as would state requirements imposed for entirely different purposes such as to reduce emissions of greenhouse gases. The bill’s lack of deadlines and its imposition of numerous overlapping procedural requirements, which would delay even the first safety decisions for many years, must be fixed. One area of agreement across all stakeholders is the desire for an efficient system that gets up and running quickly, transitions smoothly from the current system, and makes timely decisions on the large number of chemicals in active commerce. As drafted, the bill would frustrate that shared objective by requiring EPA to take years just to establish the new system, and years more to make decisions and take action on specific chemicals. And it would all but invite legal challenges by parties unhappy with one or another aspect. I have done a detailed analysis of the bill’s procedural requirements, which I’ve attached to my testimony. It shows that even by a very conservative estimate, the first list of prioritized chemicals would take more than three years to develop, and the first safety determination on a chemical not made until more than seven years after enactment, with any needed risk management actions requiring even longer to implement. Solutions to these problems are, however, evident: Among them are adding aggressive but realistic deadlines; ensuring EPA can incorporate and build on the work it has done to date as it transitions to the new system the bill would establish; and streamlining the bill’s “red tape” to eliminate redundant requirements and procedures. The bill’s undue limits on EPA’s ability to ensure that information submitted and claimed as confidential actually warrants protection from disclosure must be remedied. For example, the bill places a blanket restriction on EPA’s authority – which it has under current TSCA – to examine and require documentation of past confidentiality claims – even when it has reason to believe the information does not or no longer constitutes a trade secret. Given the widespread overuse of CBI allowances over the history of TSCA – a fact acknowledged even by industry witnesses appearing before this Subcommittee earlier this year – this restriction is unwarranted and could even preclude EPA from complying with requests its receives under the Freedom of Information Act (FOIA). Let me end by returning to what I believe is the good news here: First, we have a major political opening to address an urgent health concern and overhaul an ineffective and obsolete law that everyone agrees needs reform. Second, we have a bill that has many of the elements needed for effective reform and can serve as a basis for negotiations. Third, while its deficiencies are serious, they are fixable: many of the changes needed I believe will benefit all parties, and the others, while tougher, can be solved if we can muster the political will and negotiate in good faith to balance competing objectives. I am encouraged that the informal negotiations on the bill that have occurred to date appear already to be moving it in the right direction. I urge this Subcommittee and all stakeholders to build on the foundation laid by a bipartisan group of Senators earlier this year and work to pass meaningful TSCA reform legislation in this Congress. The task will not be an easy one, but we simply can’t afford to waste this opportunity. If done right, the bill could pave the way to an effective and efficient system that fully protects public health, restores lost confidence in the safety of chemicals and chemical products, and provides incentives and the information needed for the market to avoid dangerous chemicals and innovate safer and greener ones. The health of all Americans hangs in the balance.