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House Subcommittee Holds Hearing on TSCA Sections 4 and 8




by:
Bergeson Campbell P.C. - Washington Office

 
February 27, 2014

On February 4, 2014, the House Energy and Commerce Subcommittee on Environment and the Economy held a hearing entitled "Testing of Chemicals and Reporting and Retention of Information under TSCA Sections 4 and 8." This was the fifth hearing on the Toxic Substances Control Act (TSCA) convened by the Subcommittee. The Subcommittee held oversight hearings on June 13, 2013, July 11, 2013, September 18, 2013, and November 13, 2013, that reviewed several core sections of Title I of TSCA and proposed Senate amendments to those sections. The February 4 hearing was intended to provide the Subcommittee an opportunity to examine the way the U.S. Environmental Protection Agency (EPA) collects information on existing chemicals under TSCA. A webcast of the hearing and the background memorandum are available online.

Witnesses included:

  • Mr. Charles Drevna, President, American Fuel and Petrochemical Manufacturers;
  • Mr. Robert Matthews, McKenna Long & Aldridge, LLP, on behalf of the Consumer Specialty Products Association (CSPA);
  • Dr. Brent Grazman, Vice President, Quality Assurance, Viasystems Group, Inc., on behalf of the IPC - Association Connecting Electronics Industries;
  • Dr. Beth Bosley, President, Boron Specialties, LLC, on behalf of the Society of Chemical Manufacturers and Affiliates;
  • Dr. Catherine Willett, Director, Regulatory Toxicology, Risk Assessment, and Alternatives, the Humane Society of the United States;
  • Dr. Jennifer Sass, Senior Scientist, Natural Resources Defense Council; and
  • Dr. Jerry Paulson, Chairperson, Council on Environmental Health, Department of Federal Affairs, American Academy of Pediatrics.

Witness testimony is available online.

In his opening statement, Subcommittee Chair John Shimkus (R-IL) noted that TSCA includes reporting exemptions for polymers, microorganisms, and naturally occurring substances. He stated that the Subcommittee needs to focus on the definition of processor and whether this definition is "right-sized" to the persons, activities, and information EPA is receiving. Representative Paul Tonko (D-NY), Ranking Member, stated that the January 9, 2014, spill into the Elk River that contaminated the water supply in West Virginia demonstrates the lack of toxicity information available to EPA to provide to first responders and the public. Representative Fred Upton (R-MI), Committee Chair, described the need for a balanced chemical regulation system using the best science and highest quality information. Representative Henry Waxman (D-CA), Committee Ranking Member, expressed his desire to work with Shimkus to develop reform legislation. Waxman stated that it is an "open secret" that the majority staff is preparing a bill, but that it has not shared anything across the aisle. Waxman noted that the bipartisan bill in the Senate (S. 1009) deeply concerns the public interest community. According to Waxman, in 2013, the American Chemistry Council and Safer Chemicals, Healthy Families sat down to discuss TSCA reform and found many areas of agreement. The Meridian Institute documented this in a memorandum. Waxman stated that he would ask the groups if they would share the results with the Committee and suggested that the results could provide a blueprint for reform legislation.

Drevna testified that Congress could provide more direction to EPA concerning chemical prioritization. Drevna described Canada's screening-level risk assessments, which use hazard and exposure information to prioritize chemicals for further review. According to Drevna, EPA has developed sophisticated methods and models to predict potential hazards and exposures, and EPA could use these methods and models to prioritize the chemicals in commerce. Matthews testified that CSPA members, whom he referred to as formulators, support TSCA reform to ensure consumer confidence in chemical safety, preserve interstate commerce resulting from consistent federal and state regulation, and maintain U.S. global leadership toward risk-based chemicals management. According to Matthews, a risk-based system begins with prioritization, a process that will require information on how chemicals are used. Matthews' written testimony states: "CSPA supports the position that in order to better inform EPA's understanding of exposure potential during prioritization and subsequent safety assessments of high priority chemicals, a modernized TSCA should expressly allow the Agency to collect necessary use-related information from downstream formulators of consumer and commercial products. Most downstream formulators have not been subject to such EPA information requests, and therefore these new provisions would represent a significant change under TSCA."

Grazman testified concerning the treatment of byproducts under TSCA. Grazman described how, under TSCA, byproducts are treated as new chemicals if sent for recycling rather than disposal. According to Grazman, companies recycling byproducts must report information based on incomplete data and assumptions, and much of this information is already required to be reported to EPA under the Resource Conservation and Recovery Act and Emergency Planning and Community Right-To-Know Act. Bosley stated that testing of existing chemicals should be tiered, targeted, and risk-based, and suggested that EPA be given the authority to issue testing orders for existing chemicals the same way that it can for new chemicals. Bosley recommended that TSCA reform include a timeframe for the evaluation of existing chemicals. Bosley suggested that TSCA Section 8(e), which requires companies to report previously unknown information concerning adverse effects, be amended to authorize manufacturers, processors, and commercial downstream distributors and users to file reports concerning non-adverse findings. Currently the public database is biased towards negative and "bad news."

Willett testified that the science has changed since TSCA was enacted in 1976. To evaluate the backlog of existing chemicals and generate robust information regarding new chemicals, EPA cannot continue using its current toxicity testing paradigm. Instead, EPA could use currently available methods and technologies to prioritize chemicals. Sass described how the West Virginia incident brought home to the public the lack of information available to EPA. According to Sass, TSCA creates a Catch-22 for EPA in that EPA must essentially be able to prove that a chemical poses an unreasonable risk to health or the environment before it can obtain the data it needs to determine whether the substance poses that risk. Sass noted that the pesticide and new chemical programs allow EPA to require testing by order rather than rule. Sass testified that S. 1009 would not solve the current issues under TSCA, and, in some cases, would make it worse. Under S. 1009, according to Sass, EPA would not have the authority to require chemical testing until it had proof of its hazard. Paulson testified regarding the differences in chemical exposure between children and adults. According to Paulson, not only do children have more opportunities to be exposed to environmental chemicals, evidence supports a causal relationship between prenatal and childhood exposure to environmental chemicals and a variety of health effects in the fetus and the child.

During the question and answer portion of the hearing, Tonko asked Sass about whether the fact that 85 percent of premanufacture notifications (PMN) include no toxicity data raises a concern. Sass responded that, without information, EPA does not know how to move forward. Tonko asked Paulson about the requirement that EPA must prove risk before requiring testing. Paulson answered that it has created a non-evidence-based system, where industry is penalized for developing and reporting information. Tonko asked whether S. 1009, which would require EPA to categorize all chemicals as high or low priority and provide EPA the authority to require testing only of high priority chemicals, would make things better or worse. Sass stated that it would make things worse and that information is needed for prioritization. Paulson stated that, while prioritization is necessary, EPA needs the flexibility to move chemicals around as new information becomes available.

While several Representatives and witnesses referred to the spill into the Elk River that contaminated the water supply in West Virginia, the Senate held a simultaneous hearing entitled "Examination of the Safety and Security of Drinking Water Supplies Following the Central West Virginia Drinking Water Crisis." A webcast of the Senate hearing and witness statements are available online.

Memoranda regarding the TSCA reform bills introduced in the Senate and on the Congressional hearings held to date are available online.

Commentary

This continued series of hearings before the House Committee is an indication that both sides of the aisle and both sides of Capitol Hill are seriously attempting to find compromise on an appropriate, or at least agreeable, set of TSCA amendments. Even if bipartisan agreement was to be reached by the major legislative players, it would remain no guarantee that TSCA legislation would be enacted given the overall partisan rancor that characterizes the current Congress. At the same time, two recent events may increase the chances of reaching an agreement -- the chemical spill into the Elk River in West Virginia and the announcement by Representative Waxman that he is retiring at the end of this session. The spill has added urgency to the underlying issues of chemical safety and the knowledge base EPA has on widely used chemicals; this was discussed by various members throughout the hearing. The retirement of Representative Waxman (along with the death earlier this session of Senator Lautenberg (D-NJ), the leading proponent of TSCA reform in the Senate) provides some momentum behind the idea of closing his career with a final capstone of significant environmental legislation to his long Hill career (given that the chances of significant climate-related legislation remain remote). Also in the Senate, the ranking Republican on the authorizing committee, Senator Vitter (R-LA), has announced he is running for Governor, and if elected, he too would leave the Senate. Such departures help momentum towards compromise as members seek to add to their legislative legacies, or more simply, to recoup some accomplishment in light of the efforts they and their offices have put into the TSCA legislative effort over the past years.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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