Witnesses urge care in overdue update of US chemical laws

Nick Snow
OGJ Washington Editor

WASHINGTON, DC, Mar. 10 -- The chemical industry is ready to help update the Toxic Substances Control Act, witnesses told a US Senate subcommittee on Mar. 9. But it would like new regulations to recognize that actual risks from widespread exposure to some less-toxic substances can be greater than from more-toxic chemicals in very tightly controlled situations, they said.

“We consider the current federal chemicals regulatory framework to be a solid foundation for protecting the health of consumers, our customers, and the environment, while simultaneously allowing for the development of products to enhance health, safety, and environmental quality,” said National Petrochemical & Refiners Association Pres. Charles T. Drevna.

“NPRA and our member companies support the responsible modernization of our chemicals risk management regulatory framework. However, NPRA does not believe that a wholesale rewrite of the statute is warranted,” he told members of the Senate Environment and Public Works Committee’s Superfund, Toxics, and Environmental Health Subcommittee.

A second witness, Linda J. Fisher, vice-president for safety, health and the environment at DuPont Co., agreed that the current law has regulated US industrial chemicals effectively. “However, as our own practices have evolved over time, TSCA has not, so our views of the need to update US chemical policies have evolved,” she said.

Growing public awareness of exposure to chemicals not just through environmental emissions but also in products has raised questions about products’ safety, which is affecting markets through consumer buying decisions, Fisher said. Chemical regulations also is changing rapidly around the world, and it is important for the US regulatory system to keep pace so domestic companies can continue to sell products overseas.

‘Tremendous uncertainty’
“And of course, in the absence of reforms to TSCA, we are seeing a plethora of state actions that are serving to create tremendous uncertainty in our markets,” said Fisher, who also is a former deputy administrator at the US Environmental Protection Agency. “While there is a long-standing tradition of both innovation and encouraging action in state policies, we think a robust and reformed TSCA would remove the motivation for state-by-state regulation of chemicals.”

The subcommittee’s chairman, Frank R. Lautenberg (D-NJ), said in his opening statement that he is committed to proceeding carefully in developing a bill to reform the law. “Many of the chemicals we used in our daily lives—perhaps even most of them—are safe. But our current law does not allow the [US Environmental Protection Agency] to draw a bright line between chemicals that are safe and chemicals that are toxic. So consumers are left confused and worried,” he indicated.

Such uncertainty hurts not only chemical companies, but also major firms which use chemicals in their products, “and they are joining the drumbeat for reform,” Lautenberg said. Procter & Gamble Co., SC Johnson & Son Inc., Honeywell International Inc., and other major companies “support the development and implementation of a ‘gold standard’ in the United States for chemical management policy,” he said.

He added that Republicans have provided constructive recommendations such as basing chemical assessments on risk and encouraging innovation. “After taking into account the testimony we hear today, I intend to introduce a bill that lays out a vision for strong, effective, and pragmatic regulation of chemicals,” said Lautenberg. “But the introduced bill will be an invitation for all to play a part. I look forward to working with senators on both sides of the aisle.”

James M. Inhofe (R-Okla.), ranking minority member of both the subcommittee and full committee, noted in his opening statement that the chemical industry has outlined principles for reform, and that he has too. “Let me say this again: In order for me to accept changes to TSCA, the revisions must be based on risk assessment using the best available science, must include cost-benefit considerations, must protect proprietary information, and must prioritize reviews for existing chemicals,” he declared.

Encourage innovation
Beth Bosley, managing director of Boron Specialties LLC in Pittsburgh, said that TSCA also must be modernized without discouraging chemical energy innovations which benefit so many other businesses. “Of the roughly 60,000 patents attributable to chemical sciences issued over the past 5 years, 35,000 of them are authored by US entities,” she told the subcommittee. “US industry also leads the world in research and development of new chemical substances, better manufacturing techniques, and process safety advances designed to minimize the impact of chemicals on human health and the environment.”

The domestic chemical industry’s ability to compete worldwide has decreased substantially in recent years because of operations in countries with lower resource costs, lower wage standards, and less stringent regulations, she continued. “Shifting production to these developing countries does not make US citizens safer: We need only read the headlines regarding lead in children’s toys and sulfides in foreign-manufactured drywall to find examples where offshore manufacturing has increased risk to US individuals and decreased public confidence,” said Bosley, who testified on behalf of the Society of Chemical Manufacturers & Affiliates.

Neil C. Hawkins, vice-president of sustainability and of environment, health, and safety at Dow Chemical Co., noted that another trade association, the American Chemistry Council, has developed principles for modernizing TSCA which Dow actively supports. “We urge the subcommittee to create a federal chemical safety program that (1) creates a level playing field for all chemicals in commerce, (2) is objective in its evaluation of safety using the best available scientific information, (3) is both timely and effective, (4) provides incentives for innovation in sustainable chemistry, and (5) enhances the competitiveness of US companies,” he said in his written testimony.

Consuming businesses also believe TSCA reform is essential, two other witnesses said. Kathy Gerwig, vice-president for workplace safety and environmental stewardship officer at Kaiser Permanente, said that the Oakland-based health-care service company spends $14 billion/year for products but has found that its efforts to use environmentally sustainable products are limited. To address the lack of chemical safety information, our procurement and supply staff developed a supplier disclosure process that is used for major medical product purchases across our entire system. The disclosure is unique because we require information on a product-specific basis,” she said.

The information to be disclosed includes whether the product contains heavy metals, halogenated flame retardants, polyvinyl chloride, diethylhexyl phthalate, or ingredients contained on California’s Proposition 65 list of chemicals that cause cancer or reproductive harm, Gerwig continued. “We also ask for information on the suppliers’ safer alternatives. The process requires comprehensive vendor education and aggressive demands for safety and ingredient information. Many of the ingredients on the disclosure document are not present on the Occupational Safety and Health Administration’s required Material Safety Data Sheets due to trade secret caveats and the exemption of small concentrations from reporting even though the chemicals may cause harm in low doses.”

‘Clear identification’
Howard Williams, vice-president and general manager of Construction Specialties Inc.’s Pennsylvania division, said that private and governmental programs’ building and purchasing standards emphasize elimination of persistent bioaccumulative toxic substances (PBTs).
“In this time of people-benefit environmentalism, TSCA reform will find the buildings industry ready to receive and broadly distribute its benefits. We have a $10 billion/year green building product market. We need a clear identification of chemicals of high and low concern to human and environmental health,” he said.

Several witnesses strongly argued against regulations which fail to differentiate toxic chemicals which are used in tightly controlled situations from more benign substances with wider public exposure. Bosley said that a major flaw in the European Union’s Registration, Evaluation, and Authorization of Chemicals system which is just being implemented is that it didn’t categorize substances by risk. “If a chemical is highly toxic but is used only in highly controlled situations, then the risk to public health is very limited and easily managed,” she observed.

“Recognizing that some chemicals can be reactive and toxic, vigorous protection of human health and the environment is imperative and requires appropriate chemical risk management,” said Drevna. “Even though most chemicals in commerce are used in industrial applications and never come in contact with the general public, there is a fundamental need for the federal government to appropriately manage the risks of all chemicals in commerce from production to disposal.”

US chemical risk management has evolved and is continuing to evolve, he continued. EPA is recognized as a world leader in chemicals policy, and its opinion is highly valued internationally because TSCA gives it broad authority to regulate chemicals in commerce, he said. Petrochemical and other US chemical companies responded by creating environmental, health, and safety departments which have managed industrial chemical risk for decades. They also have discovered that risk management must be appropriate for the situation and based on sound science, NPRA’s president said.

“Our nation’s current chemicals policy has allowed American businesses to survive in an increasingly competitive marketplace,” he said. “Reform of domestic chemicals policy will necessarily take time and careful deliberation. NPRA therefore urges Congress to consider an inclusive, transparent process when crafting language to modernize the Toxic Substances Control Act.”

Contact Nick Snow at nicks@pennwell.com.

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