U.S. Toxic Substances Control Act Compromise Shows Promise

In the wake of a groundbreaking U.S. Senate bill to reform the country's chemical control law, leaders in both chambers of Congress are convening hearings on the Toxic Substances Control Act (TSCA), indicating an interest in updating the 1976 statute.

In May, U.S. Senators Frank Lautenberg (D-NJ) and David Vitter (R-LA) introduced a surprise bipartisan compromise - the Chemical Safety Improvement Act of 2013. The Society of Chemical Manufacturers and Affiliates (SOCMA) believes the legislation, as it stands, would be favorable to the concerns of specialty chemical manufacturers, including small and medium-sized companies. On June 3, after struggling with his health over the past few months, Lautenberg passed away at the age of 89.

The Lautenberg-Vitter bill currently has more than 20 cosponsors and has been endorsed by The New York Times, The Washington Post and prominent environmental groups. Some of the positive highlights include:

• Protection for confidential business information (CBI). Ensuring adequate protection of CBI is a top tier issue for SOCMA, and the bill treats this section reasonably.
• Clearer trade secret protection of chemical identity. The current law is ambiguous in this regard, but the new bill clarifies that aspect of TSCA.
• A largely unchanged new chemicals program.
• Resetting the TSCA inventory, mandating prioritization of existing chemicals, separating cost-benefit analysis from the safety standard and alleviating some procedural burdens involving risk-management. 
• No mandated minimum data sets.

In mid-June, Boron Specialties President and SOCMA member Beth D. Bosley testified in the U.S. House of Representatives that any changes to the nation's chemical control law must provide adequate protection of trade secrets and promote innovation while protecting human health and the environment. The hearing, which examined TSCA and its impact on the economy, as well as public health and safety, was the first in a series of hearings on the current law. On July 11, the House held its second hearing on new chemicals, CBI and innovation.  While several witnesses called for a minimum amount of toxicity data for all chemicals, chemical industry experts explained the U.S. Environmental Protection Agency (EPA) already has many different ways to evaluate chemicals in lieu of toxicity data.  One lawmaker referenced Bosley's earlier testimony in which she stated that companies outside the U.S., rather than curious members of the public, are requesting access from the government for information on chemicals and product development.

The Senate, for its part, will be holding a hearing in late July to compare the original Lautenberg bill, the partisan Safe Chemicals Act of 2013, with the bipartisan Vitter-Lautenberg bill.

Over the years, TSCA has been criticized on many fronts, largely due to the emergence of international chemical control regulations, a growing patchwork of state and local laws, and de facto "retail regulation" or consumer de-selection.

Advances in the ability to detect chemicals at extremely low concentrations have also helped raise awareness of the pervasiveness of chemicals in the environment, although a detectable presence of a chemical does not equate to harm. The EPA, responsible for implementing the law, has had trouble implementing some parts of the statute. Some have attributed this to massive shortcomings to TSCA while others believe the agency could do a better job.  Nevertheless, stakeholders agree the law should be revised; the degree to which it needs revision is still being ironed out.

The Lautenberg-Vitter bill shows quite a bit of promise, but it still has a long road ahead of it. SOCMA said it looks forward to working with lawmakers to progress this legislation.