House Subcommittee Moves Ahead With Chemical Safety Reform

The House Energy and Commerce Subcommittee on Environment and the Economy held their fourth hearing on the federal Chemical Safety Improvement Act (CSIA), the long-awaited reform of the Toxic Substances Control Act (TSCA).  During a nearly three-hour hearing, representatives from chemical companies, environmental groups, and the U.S. Environmental Protection Agency (EPA), testified before the subcommittee.

The Toxic Substances Control Act of 1976 authorizes the EPA to regulate certain chemicals and compounds but has proven largely ineffective.  In the more than 35 years the TSCA has been on the books, the EPA has only been able to regulate five chemicals.  While the CSIA aims to update the TSCA, many stakeholders, including concerned citizens and industry representatives, still have concerns.

Some of the concerns raised at the hearing:

• Preservation of states’ rights.  Several representatives perceived the CSIA as having a very sweeping preemption clause that would prevent states from regulating toxic chemicals while the EPA performed a risk analysis, which might take years.
• The lack of firm deadlines raised doubts about the EPA’s ability to perform safety determinations in a timely manner and actually effect change, or whether the EPA would simply get bogged down by current procedural requirements.
• The definition of “safety standard” in the bill that states that no “unreasonable risk” of harm to human health or the environment should result from chemical exposure.  In the past, “unreasonable risk” was interpreted to require a cost-benefit analysis as opposed to a health risk analysis.  A cost-benefit analysis may result in a conclusion that the benefits provided by a toxic chemical outweigh the costs, such as scientifically proven harm to humans or the environment.
• Some representatives wanted more emphasis on protections to “vulnerable populations” such as children and pregnant women, who are more at risk from exposure to dangerous chemicals.
• A lack of additional resources or funding to EPA may make the CSIA difficult to implement or enforce.

However, several aspects of the CSIA were praised:

• Unlike the TSCA, the CSIA requires that the EPA verify the safety of a new chemical before it can enter the market.  In other words, new chemicals must now be tested and found safe before being introduced into commerce.
• Many representatives remarked in their opening statements that this was a true bipartisan effort and praised the cooperation of politicians from both sides of the aisle as well as citizen and industry groups.
• Several representatives asked panel members whether the CSIA will hurt innovation. And each panel member answered “no.”  As Jim Jones, Assistant Administrator for EPA’s Office of Chemical Safety and Pollution Prevention pointed out, this should only facilitate the innovation of safe things.

While the negatives may seem to outnumber the positives about the bill at this point, subcommittee chair Rep. John Shimkus (R-IL) concluded, “The law is 37 years old, has not been changed, has proven to be not effective.  Something has to be better than nothing.”

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.