The Chemicals in Commerce Act is A(nother) TSCA Bill Only Industry Could Love

With the House scheduled to hold another hearing on TSCA this week, it’s a good time to take stock of where things stand on TSCA reform. House Republicans recently unveiled a discussion draft of their notion of TSCA “reform” legislation. Given the bill’s content, it is hard to know where to start the discussion. 

For anyone who was holding out hope that the chemical industry was on the verge of getting serious in its pursuit of meaningful TSCA reform, the new House bill can only be a disappointment. Unfortunately, the draft is as fatally flawed as the disastrous version introduced in the Senate last year. And, because House Republicans and the chemical industry have an uncontrollable urge to pile one attack on health and environmental protection on top of another, (and another) the House bill contains a few new gimmicks to erode the authority of EPA and the states to regulate toxic chemicals. 

A number of the significant problems with the new House bill – called the Chemicals in Commerce Act (at least it isn’t falsely advertised as improving chemical safety) – are detailed in a fact sheet by the Safer Chemicals Healthy Families coalition (NRDC is a member).  To briefly summarize, below are some of the key problems with the House bill.  They should sound familiar to those following this debate because the drafters have apparently chosen to ignore most of what they should have learned about the problems with the current law, as detailed in a series of previous hearings, as well as the problems with the Senate bill which has received extensive criticism (some public, some private) from a range of stakeholders.  These include:

  • A health standard that won’t actually protect health or ensure chemicals are safe, including for vulnerable populations.  It really doesn’t get more fundamental than this.  After nearly a year of discussion about the Senate bill, it should be deeply troubling that no progress is visible on this most basic issue;
  • No enforceable deadlines for EPA to take most of the essential steps in the process of gathering information, prioritizing action, assessing chemicals and, where necessary, imposing restrictions, nor any minimum requirements for the number of chemicals to be assessed over a given period of time.  If someone is serious about passing meaningful and effective legislation, this is Legislation 101.  The chemical industry and House Republicans get an F on this entry-level topic;
  • A structure for “prioritizing” chemicals designed to ensure that most chemicals – likely thousands of them -- are never adequately assessed for safety, and are instead entirely shielded from scrutiny or regulation by states and almost entirely by EPA.   

Prioritization implies, and in the context of TSCA reform had always previously been discussed as: coming up with some common-sense criteria to figure out which chemicals are most in need of assessment and potential regulation, and examining those first.  Those criteria were commonly considered to include: evidence of human exposure to a chemical (for example if it is found in the blood of people), and evidence of its toxicity or hazard (if it is already recognized as a carcinogen, or to cause birth defects).  Basically, let’s focus on the chemicals we know we have concerns about first – the same way you would probably prioritize fixing a hole in your roof before tightening that loose door knob.

The House and the Senate bills pervert this basic notion of prioritization in a couple of very important ways.  First, EPA is prohibited from requiring chemical companies to develop the information EPA needs to determine whether a chemical is a high or low priority.  EPA can request that the chemical industry provide the agency information, but it cannot require the industry to produce it or to do any additional studies.  Having the data and information necessary to judge the safety of chemicals is the foundation on which any effort to protect the public must be built.  If the system is based on the voluntary disclosure of information from the chemical industry, it won’t work. I think it goes without saying that this is why the chemical industry is so insistent on clinging to its ludicrous position that EPA should not be able to require testing on a chemical before it has been prioritized.  The European Union rejected that notion years ago and adopted the exact opposite position: No Data, No Market. 

Second, while both bills require EPA to classify a chemical as “high priority” when it has information that the chemical has both a high hazard potential and a high exposure potential, if the agency only has information on one or the other, or if it simply doesn’t have enough information on either, then listing of the substance as a “high priority” is optional.  That could make sense if the chemical with evidence of high hazard or high exposure was going to get put farther back in line than a chemical with evidence of both, but instead, the bill requires that chemicals not deemed “high priority” be deemed “low priority.” And once they are deemed low priority, states are prevented from regulating them and EPA’s ability to assess or restrict those chemicals is basically eliminated – unless EPA receives “new information,” which it cannot compel chemical companies to produce.  The House bill makes this even clearer than the Senate, but both have the same effect.

So, consider a chemical which is suspected of being a human carcinogen but the chemical hasn’t been fully tested and EPA doesn’t have any information about exposure levels.  That chemical could be deemed “low priority” and therefore could never be regulated, -- by EPA or any state -- even if it was used in a manner that would lead to widespread human exposure.  Or, consider a substance that was widely found in people’s blood, but for which EPA did not have any information about its toxicity or hazard.  Similarly, that chemical could be categorized low priority and removed from further review or action even though it might actually pose a serious threat to public health.

In short, the whole “prioritization” scheme established in both bills is designed to limit the ability of EPA and the states to get information or take action – ever – on the vast majority of chemicals.  Under the chemical industry’s scheme, now presented in two successive bills, “low priority” doesn’t mean “EPA will get to this later” it means “EPA can get to this never.”

  • Provisions that try to bias and lock into law specific science and assessment approaches designed to favor industry, ignoring the recommendations of the National Academy of Sciences.  By requiring EPA to proceed according to the chemical industry’s playbook a fair, accurate and health-protective system of assessing and regulating chemicals will not be possible;
  • Prevent the public from getting the information that people need to make their own decisions about the safety of a chemical – for example, by attempting to grandfather all previous claims of confidential business information (CBI) made in the last 38 years under TSCA; despite extensive documentation that such claims have been overused and abused to hide information not eligible for such protection.

It was bad enough that there was so much of this kind of thing in the Senate bill introduced last year; that it remains (and in some cases is even worse) after the intervening contamination of the drinking water of hundreds of thousands of West Virginians and all the problems with data access that incident revealed is either crazy or callous on the part of industry if it thinks it wants TSCA reform any time soon.

  • Sweeping termination of states’ authority to protect their citizens from unsafe chemicals; including laws already on the books.  So the bills double-down on constraining EPA and simultaneously ensuring that States are prevented from taking any action in EPA’s absence.  That is a lose-lose proposition for the public;
  •  And, last but not least, the bills have no language directing EPA to take action on an expedited basis to begin reducing exposures to Persistent and Bioaccumulative Toxins (PBTs).  So even chemicals internationally recognized as some of the most problematic -- because they are toxic and build up in the environment and our bodies – will be stuck in the same traffic jam to nowhere with all the other chemicals that EPA and the states will never manage (or be allowed to) regulate under the chemical industry’s version of “reform.”  The House bill makes this even worse by making it harder for EPA to regulate chemicals if they are in “articles” – so keeping these chemicals out of things like furniture and carpets would face a new hurdle.

This is not close to a comprehensive summary of even the major problems with the House and Senate bills.  So, as the discussion goes forward on TSCA Reform, members of Congress should ask themselves some questions along these lines about the legislation that the chemical industry is so aggressively promoting:

  • “I understand why it’s in the interest of the chemical industry to concoct a “health standard” that does not explicitly ensure protection of health and does not require protection of vulnerable populations like children, women, workers and others – but why is that in the interest of my constituents?”
  • “I understand why it’s in the chemical industry’s interest to establish a system with no enforceable deadlines and no minimum requirements for EPA, -- but why is that in the interest of my constituents?”
  • “I understand why it’s in the interest of the chemical industry to sweep the question of safety of hundreds or even thousands of chemicals permanently under a rug called “low priority” – but why is that in the interest of my constituents?”
  • “I understand why it’s in the interest of the chemical industry to dictate biased methodologies for reviewing chemicals rather than adopting neutral language or relying on an independent and credible arbiter of these issues like the National Academy of Sciences – but why is that in the interest of my constituents?”
  •  “I understand why it’s in the interest of the chemical industry to drastically limit EPA’s ability to require basic data on all but a relative handful of chemicals – but why is that in the interest of my constituents?”
  • “I understand why it’s in the interest of the chemical industry to maintain and create legal hurdles to make it harder for EPA to issue regulations on a chemical that it finds is harmful – but why is that in the interest of my constituents?”

It is of course totally understandable that members of Congress would be frustrated with legislative gridlock, and admirable that some have a desire to actually get something done.  It is not surprising that in an era of such serious divisions the allure of coming up with anything that could be called bipartisan would be almost overpowering in some quarters.    And it is undeniable that the current TSCA is broken and the country would be better off with a strong and functioning law.  But, in the case of TSCA, and particularly in the case of the bills currently under consideration in the House and Senate, a bad bill is definitely not better than nothing.  Unfortunately, it is possible to find ways to make the current situation even worse -- a feat that both the House and Senate bills have managed to accomplish.    

This is not a problem of the perfect being the enemy of the good, it is a problem of the chemical industry continuing to be the enemy of anything remotely within the same time zone of being reasonable or even credible – and too many members of Congress are simply following their lead. The situation could still change, although the House discussion draft sinks one’s hopes that it will.   

To hammer home the point, this is not currently a close call: the public would be ill-served by the passage of the House or Senate bills as they are, and unless the chemical industry shifts course -- or enough members of the House and Senate are prepared to tell the industry to get serious – the correct choice (and the correct vote if it comes to that) will be to oppose these bills.

The head of the chemical industry's main trade association has been telling anyone who will listen that this is a "once in a lifetime opportunity" for TSCA reform. But no one is doing more to squander that opportunity than the representatives of the chemical industry. The industry continues to act like what this really is is a once-in-a-lifetime opportunity to bamboozle enough Members of Congress to pass legislation that would permanently crush the ability of EPA or the states to protect the public from toxic chemicals, while giving the industry leverage against more protective rules in the EU through the trans-Atlantic trade talks.

The House Discussion Draft is (another) industry dream bill, but for everyone else its enactment would be a nightmare. Members of the House and Senate should wake up now and take a very careful and critical look at the content of these bills and what they are being told about them by the industry's friends and lobbyists.  These are TSCA reform bills that only the chemical industry could love, and no member committed to protecting public health should consider voting for them in anything like their current form.

About the Authors

Daniel Rosenberg

Senior Attorney, Health & Environment program

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