I thought I’d take a crack at responding to the testimony March 12, 2014, on the Shimkus Chemicals in Commerce Act (CICA) discussion draft by Michael Belliveau, senior advisor to the Safer Chemicals, Healthy Families coalition - one of the most ardent TSCA-is-broken advocacy groups out there. My comments on each of his 12 reasons why neither the Chemical Safety Improvement Act S.1009 bill nor the CICA are offered below:
1. The House bill abandons the consensus for a health-based safety standard.
This was set up S.1009 and would put EPA in an untenable box of having to define thousands of "standards" covering every chemical in commerce, the details of which will be argued to death about. The CICA skips that step and goes for a risk-based safety determination of existing uses of high priority chemicals or proposed uses of new chemicals, followed by deciding risk management requirements that are adequately protective and yet not economically disastrous for high priority chemicals. Which will still be argued over.
2. Both bills fail to protect pregnant women and children from toxic chemicals
Both bills talk about dealing with exposure to subpopulations. CICA is explicit in listing pregnant women and children, among others. Since this comes from a group that considers there will always be potential exposure to any and all chemicals and that any exposure to a toxic chemical (which most chemicals are in their view), I'm not sure what the point is. If EPA finds there is unsafe exposure likely, they would have authority to do something about it - as they do NOW under today's TSCA. Apparently, exposure to toxics by subpopulations should warrant an automatic ban. Obviously, I disagree with the concept that any exposure is unacceptable. The vast majority of chemicals in commerce are for industrial use and do not represent significant exposure potential. Which isn't to say there should be no restrictions to ensure negligible releases to the environment.
This item also wants EPA to have to deal with aggregate exposures. While it's easy to say, not so easy to do. A lot more research and interagency coordination is needed to figure out how to identify and manage aggregate exposures.
3. Both bills roll back current law: Many chemicals will remain untested
Both bills make it easier for EPA to get test data by order, rather than formal rulemaking as now. EPA still wields the big stick to get data on new chemicals if it's uncomfortable with a PMN review. If anything, it may be too easy for EPA to require expensive testing. But NGOs want a minimum data set a la REACH on all chemicals. We are still seeing what the impacts of REACH are without duplicating the experience here. Perhaps EPA will be successful in getting its hands on REACH dossier data. It will be interesting to see what kinds of changes are made in risk management as a result of all the data being developed in EU. It's not clear that any "holy cow" new toxicity information has been generated yet. Most peculiar is the NGO problem with EPA having to consider available data first without going for new data. Why would you want EPA to ignore and/or duplicate existing information? And the bills would like EPA to have some feel for exposure (again, through easier to generate reporting requirements). Instead NGOs want up-front testing, just in case. We don't have the testing capability, nor do companies have the funds to do a lot of unnecessary testing.
4. Both bills roll back current law: Weakening the review of new chemicals
They don't like the change from "may present" to "likely to result in" unreasonable risk that appears in the two bills. Frankly, I don't know why the change was made. In either case, the issue is whether EPA is willing to make a case. My understanding is the changes are meant to codify current practice - which is operating pretty well. EPA sure looks to me to be retaining all the blackmail authority they need to get what they need on new chemicals.
5. The House bill rolls back current law on chemicals in consumer products
What they are worried about is how the CICA would make EPA think twice about tackling articles. I don't really see major barriers if EPA really thinks that articles regulation is the way to best reduce risk. Realistically, adding in a lot of focus on information -gathering and tailoring restrictions to the millions of articles in commerce is a nightmare that EPA has avoided under today's TSCA and should avoid if they can in the future. Why Shimkus took out explicitly listing disposal of articles as a potential restriction is puzzling, but is arguably still in the toolbox if that makes the most sense (cost-benefit wise) for risk reduction.
6. Both bills fail to require expedited action on chemicals of high concern
NGOs want automatic bans. Unfortunately life is not so simple. I will agree that EPA needs a kick in the butt to do something. I think their problem has been getting stuck on the only options being across the board bans - which cannot be justified (even for asbestos). I like the "proportional" to the risk language in CICA. Will it be argued about? Of course! Welcome to democracy.
7. Both bills set aside thousands of chemicals as “low priority” without safety data
"Low priority" designation are not forever if new information says bump it up. We already have plenty of low priority chemicals - polymers and low volumes being classic. I frankly think EPA will be very nervous about making this designation and that we will see the vast majority of chemical in a limbo-land awaiting definitive data. Perhaps a category of "lower" priority should be established? Again, complete knowledge about all chemicals is a nice-to, but totally impractical and wasteful of limited resources. Even REACH allows "read across" to avoid over-testing.
8. Both bills maintain an onerous burden on EPA to restrict existing chemicals
"Onerous" is in the eye of the beholder. Shutting down businesses should be a serious, careful undertaking. Maintaining some kind of cost-benefit consideration is absolutely necessary. We'll argue and sue over it, but so it is in a democracy. At least the issue of finding the absolute " least" burdensome is gone, but still reasonably requires benefits to exceed costs. And citing the asbestos ban case - drives me nuts! EPA went for the hole hog ban and didn't do it's homework on which uses presented the worst risks and which uses had reasonably available and adequately performing substitutes. E.g., at the time, there were no brake linings as safe as asbestos. Plus, EPA made no allowance for taking time to develop safer alternatives. The agency spent all its time collating tox data and not looking at technical feasibility and proportional restrictions that could be phased in over time. After their loss, they became too scared to try again. Wimps. EPA has tremendous authority under TSCA that they are just now beginning to explore under Jim Jones. They'll win some and lose some, but not if they don't try.
9. Both bills violate States’ rights to protect their citizens from toxic chemicals
If a state has a unique risk profile (as opposed to political differences with the Feds) it can act as necessary. States can also act if EPA is dragging its feet. Shimkus covers this by so allowing state action prior to a final action. Interstate commerce requires consistency. Right now California forces national companies to follow their rules as the de facto law of the land because of its market size (taxation without representation?).
10. Both bills maintain a veil of secrecy over critical chemical information
Pshaw. See earlier blogs.
11. Both bills lack adequate deadlines and resources to drive serious progress
Arbitrary deadlines make for arbitrary decision criteria. But something to goose EPA is needed. We still need an opportunity to review (and amend) decision criteria and hold EPA to explaining their actions. As Jim Jones testified earlier, how fast EPA can move will depend on how many resources it has to do reviews. But it also means they have reasonable criteria everyone can more or less agree to.
12. Both bills restrict EPA’s ability to timely exercise its scientific judgment
Surprise: NGOs don't like "best available science" or quality criteria to support decisions. "Just ban it," is their motto. Analyzing things forever makes for no decisions, but acting on bogus data can be worse. A government "oops" is usually permanent - the company is gone, the product is gone, we are stuck with bad substitutes and costly workarounds. Perfect knowledge is unattainable, but proportional to the strength of the data responses makes sense. And if it were only possible to make regulatory systems more flexible to dealing with new information, we would not see so many decisions hung up for decades. Again, the drive to ban chemical use is going to result in a vigorous challenge to Agency "scientific judgement."
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