Toxic Substances Reform Legislation Back in the Spotlight

Momentum is again building among parties calling for major reform of the Toxic Substances Control Act (TSCA) with Sen. Frank Lautenberg (D-NJ) leading the way. In the first glimmers of bipartisan support for a major overhaul of TSCA, Sen. Lautenberg and Environment and Public Works Committee ranking member Sen. James Inhofe (R-OK) plan to co-host a series of stakeholder meetings in coming weeks regarding Sen. Lautenberg’s new bill, S. 847, the “Safe Chemicals Act of 2011.” The first meeting is to be held on June 21, 2011.

The meetings come in the wake of new studies alleging environmental and safety hazards of a variety chemicals that have had environmentalists and consumer-protection groups calling for a major overhaul of TSCA. TSCA remains the only federal environmental law that has never been amended or updated.

Current Legislation

Senator Lautenberg has long advocated for TSCA reform legislation. He has sponsored numerous TSCA reform bills in past Congresses that would drastically change how the more than 80,000 chemicals in commerce are regulated. Some of his better known attempts include the “Safe Chemicals Act of 2010” (S. 3209) and the “Kids Safe Chemicals Act.” As a progeny of his previous works, S. 847 is a reworked version of his 2010 bill, S. 3209, which was stalled in Congress in the run-up to the most recent midterm elections.

In his current legislation, Sen. Lautenberg attempts to account for various industry criticisms of last year’s bill, but S. 847 nevertheless shifts the burden to industry to prove that chemicals in the market are safe. For example, instead of prescribing which chemicals EPA must regulate, S. 847 would require EPA to identify, categorize, and evaluate chemicals based on a statutory process. While removing the “hit list” of 300 chemicals that existed in previous legislation, S. 847 provides that manufacturers and processors will bear the burden of supplying enough information for EPA to evaluate whether safety standards are met. EPA then will categorize chemicals among three “priority classes.” EPA’s classification decisions will not be subject to judicial review. EPA must “base the determination of whether the safety standard has been met solely on considerations of human health and the environment, including the health of vulnerable human populations.” The standard is met only if there is a reasonable certainty that no harm will result from aggregate exposure, an undefined term under the revised bill.

The new bill clarifies that, similar to the European Union’s “REACH” program, each manufacturer or processor of a chemical must submit a Minimum Data Set. The requirement cannot be met simply by an industry-wide submission or a representative industry member submitting a Minimum Data Set, an arguable approach under the 2010 bill.

S. 847 also calls for expanding TSCA’s reach over imported articles. TSCA Section 13 would be amended to provide: “Chemical substances and mixtures imported as part of an article shall be subject to the same requirements under this Act as if the substances and mixtures had been imported in bulk, except as the Administrator may provide by rule under this Act, or as the Secretary of Homeland Security may provide by rule.” All statutory obligations would thus apply to substances and mixtures imported as part of an article (including requirements regarding submission of a Minimum Data Set, new chemical notification, declarations, etc.) unless and to the extent such requirements have been excluded by rule.

As a whole, S. 847 attempts to require chemical companies to demonstrate the safety of industrial chemicals and the U.S. Environmental Protection Agency (EPA) to evaluate safety based on the best available science, which is the main goal of all TSCA reform supporters. The details, however, may prove the sticking point.

Pressure for Legislative Action

Concurrent with the introduction of new legislation, the Obama Administration and public advocacy groups are pushing aggressively for TSCA reform. Among other things, new studies highlighting environmental and safety hazards of various chemicals are bolstering the call for change. For example, environmentalists and consumer activists are pointing to a newly published study on the presence of flame-retardant chemicals in baby products in their efforts to push reform. On May 18, 2011, the journal Environmental Science & Technology published a study identifying flame retardants in polyurethane foam collected from baby products. Parents from around the country sent pieces of foam from at-hand baby products, producing a study set of 101 baby products from different manufacturers and from different production years. The study’s purpose was to investigate whether the baby products contained flame-retardant chemicals that pose a significant source of exposure to infants and children. It concluded that, although industry had stopped using these chemicals in many instances years ago, the public remains exposed to many of them.¹ As a result, environmentalists and consumer advocacy groups are calling for flame retardant chemicals-in addition to other chemicals that were grandfathered under existing law-to be tested for possible health effects, as is required before new chemicals enter the market.

Outlook

Based on the upcoming bipartisan meetings, the Safe Chemicals Act of 2011 may fare better than previous attempts in the Senate Environment and Public Works Committee. Meanwhile, in response to the baby product study, EPA is working with industry to voluntarily phase out some flame-retardant chemicals and replace them with safer alternatives. Proponents of TSCA reform, finding EPA’s efforts inadequate, are moving forward. Specifically, they are scheduled to meet with White House officials to petition the administration to act on a 2010 report from the Presidential Cancer Panel indicating that the contribution of chemicals in the environment to cancer rates has been understated. The Environmental Science & Technology study’s results likely will give TSCA reform advocates an additional platform from which to argue their cause as they continue to push for the passage of S. 3209.

Kelley Drye & Warren LLP

Kelley Drye’s Government Relations and Public Policy Practice Group helps clients interpret and shape governing laws, enabling them to achieve and maintain market leadership. The varied backgrounds of its government relations lawyers and professionals enable the team to handle a variety of clients needs including representation and strategic planning.

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For more information about this advisory, please contact:

Dana S. Wood
(202) 342-8608
dwood@kelleydrye.com

Joseph J. Green
(202) 342-8849
jgreen@kelleydrye.com

¹ The study found that eighty of the 101 samples contained an identifiable flame retardant additive, and all but one of these was either chlorinated or brominated. Concentrations of the chemicals in the foam were as high as twelve percent by weight. The most common flame retardant detected was tris (1,3-dichloroisopropyl) phosphate. Chlorinated organophosphate flame retardants were the dominant class of flame retardants observed and were detected in 60 of the samples analyzed. Firemaster 550 also was detected in seventeen samples. Despite the fact that its production ceased in 2004, the study found products that had PentaBDE in them.