The chemical industry is launching a new campaign that emphasizes limiting exposures to harmful substances rather than barring their uses -- an approach that could provide insight into Toxic Substances Control Act (TSCA) reform legislation the industry is crafting with Sen. David Vitter (R-LA), the new top Republican on the Senate environment panel, as an alternative to Democrats' bill.
Since Vitter has said he does not expect a quick deal with Democrats, and environmentalists strongly oppose the industry's stance, the continuing stalemate is expected to lead EPA to continue its push to use its existing TSCA powers to prioritize dozens of existing substances for assessment and possible regulation, and to employ novel oversight of existing chemicals' uses. Given that there will be "four more years of Obama administration and a divided [Capitol] Hill that could make it more difficult to get things done legislatively, it could embolden the agency to get more things done," one environmental policy consultant said shortly after the election.
But EPA's lengthy assessment process, uncertain regulatory powers under current law, growing consumer unease with chemicals used in many products, especially children's toys, and patchwork of state laws are driving industry to seek a legislative fix.
Jim Jones, the Obama administration's nominee to head EPA's chemical safety office, has urged industry officials to reach a "common sense" agreement with environmentalists on how to reform the law in order to speed assessments or face economic losses as consumers abandon substances they fear may not be safe.
While ACC and other groups are working with Vitter -- who is slated to replace Sen. James Inhofe (R-OK) as the ranking Republican on the Senate Environment & Public Works Committee (EPW) -- on a bill to update the 36-year-old TSCA statute, Vitter has said he does not expect an early deal with committee Chairman Barbra Boxer (D-CA). Instead, he said he will focus on infrastructure development that reaches middle ground. "Anything more directly environmental regulation related" is "tougher because we're so far apart," he recently told Politico.
Nevertheless, Vitter's legislation, slated for release early in 2013, will mark the first time that Republican and industry groups will offer a public alternative to long-standing TSCA reform legislation sponsored by Sen. Frank Lautenberg (D-NJ) and strongly backed by environmentalists.
At the heart of Lautenberg's legislation, known as the Safer Chemicals Act, is a new safety standard that requires companies to show their chemicals pose "reasonable certainty of no harm," a significant change from the law's current safety standard which requires EPA to show chemicals pose "unreasonable risk" to restrict them.
Supporters of the bill say the new standard, based on one adopted by the European Union (E.U.), is needed in part to prevent foreign companies from dumping chemical products in the U.S. that can no longer be sold in the E.U..
Environmentalists and public health groups, lead by the Safer Chemicals, Healthy Families Coalition, have committed to backing Lautenberg's bill, and plan on targeting key senators, including Sen. Mark Warner (D-VA), in the coming months to gain their support for the legislation. "The coalition is going to continue to work with both the public and Congress to pass the Safer Chemicals Act," says a source with the group.
While 2012 negotiations with Vitter and other Republicans led Democrats to soften some portions of the bill, which was voted out of the environment committee in a party-line vote last summer, they retained the safety standard. "There's a difference [of opinion] here that involves how much you want to protect public health versus how much you want to balance that with protecting chemical companies," Boxer said at the time.
'Unreasonable Risk' Standard
Some in the industry have been willing to consider a tightening of the current "unreasonable risk" safety standard. But ACC has charged that Lautenberg's approach is too focused on chemicals' hazards, which assumes exposure at harmful rates, rather than considering their risks, an approach that accounts for both hazard and exposure.
ACC, which has long backed "modernization" of the aging law, says Lautenberg's approach would cripple the industry and that any reform needs to be done in a way that ensures that the chemical industry can still develop new, safer products, such as life-saving medical applications and new energy efficient products. "These are not mutually exclusive objectives," ACC President Cal Dooley said in recent conference call on the industry's outlook for 2013.
Until now, however, the industry and Republicans have not offered an alternative to Lautenberg's bill.
But ACC is funding a recently launched website that hints at industry's preferred approach, which acknowledges that some chemicals used in toys and other consumer products may pose hazards but that consumers should limit exposures to prevent harms.
Sponsored by ACC, the Cincinnati Children's Drug & Poison Information Center and others, the website is titled "Kids + Chemical Safety," and is administered by the non-profit risk assessment consulting group Toxicology Excellence for Risk Assessment (TERA).
In some sections, the site seeks to explain the difference between hazard and risk. For example, it notes in a section on the risks of chemicals in toys that "parents need to consider two things: can the chemicals in the toy result in an exposure, and is this exposure associated with a health risk."
After explaining that toxicologists calculate risk by multiplying exposure and hazard, it adds that "it is important to consider not just the chemical levels in the toy, but also whether they can cause an exposure above a safe level." It says that "safe levels" depend on the chemical and any exposures, and put the onus on parents to ensure they choose "appropriate toys designed for their child's age and paying attention to warnings on the labels."
However, the Environmental Defense Fund's Richard Denison is blasting the new site, charging it is biased, especially its approach on chemicals in toys. "How . . . is a parent to understand the risk, say, of their child playing with a toy that contains a phthalate plasticizer? For starters, the chemical won't be listed on the label."
Denison also questions whether the industry scientists who crafted the site are "really content telling parents they need not worry that a chemical known or suspected to cause development abnormalities is deliberately added to a toy by its manufacturer? And that the keys to their child being able to use the toy safely lie, not in ensuring such chemicals aren't used in toys, but rather in parents reading the label, minimizing the amount of time the child puts the toy in his or her mouth, and 'washing the child's hands after use'?"
Michael Dourson, TERA's founder and president, said in a response to Denison's Dec. 19 blog that "no sponsor dictates our content, subject matter, or message, anyone interested can feel free to ask questions, and we will strive to write essays in response that are balanced, accurate, to the point, and timely."
Despite the controversy, industry groups say they are pleased that Vitter continues to make TSCA reform a priority. "We've been very pleased that since [Vitter] has become the lead Republican on the EPW committee, that on every public statement he has made for his priorities for 2013 that he has listed TSCA reform . . . that gives some confidence that he will be introducing legislation in 2013," ACC's Dooley told reporters on the outlook call. However, Dooley added, Vitter is yet to lay out a time frame for the bill.
Dooley said that when Vitter introduces the bill, he is confident that it will have support from Democrats -- though he declined to say if any had already expressed interest in the legislation. "We will have the opportunity to demonstrate that there is a real opportunity to develop a strong bipartisan solution and proposal for TSCA reform."
But a TSCA attorney said that a bill from Vitter would likely be a nonstarter for environmentalists, much as Lautenberg's legislation is for industry. "A Republican bill can't be a mirror image of industry's wish list . . . It would be better if other senators on both sides of the aisle were more actively engaged in the debate," the source adds. -- Jenny Hopkinson & Maria Hegstad