TSCA Reform and the Chemical Safety Improvement Act: When is Compromise Too Much? Jim Quinn Metro Hazardous Waste Program, Portland, OR NAHMMA Conference, September 2013

Today’s Presentation What is TSCA? Why should NAHMMA & the HHW community care? Why isn’t TSCA working? The TSCA reform Movement US Senate bills in play A compromise- does is it give up too much? What you can do

NAHMMA’s mission NAHMMA is dedicated to: “reducing the hazardous components entering municipal waste streams from households, small businesses and other entities.”

from: “Sustainable Materials Management: The Road Ahead” US EPA 2009

TSCA Toxic Substances Control Act, passed in 1976 Covers about 84,000 chemicals in commerce, totalling ~74 billion pounds of substances produced or imported into the United States each day Regulates the introduction of new chemicals into the marketplace, as well as those already in commerce when it was passed

TSCA, cont. Does not address: uses in drugs, cosmetics, food packaging regulated by FDA, uses in pesticides covered by EPA under FIFRA Is the only major environmental statute that has not been reauthorized (RCRA, CERCLA, CAA, SDWA)

[ Next three slides borrowed from Richard Denison, Environmental Defense, from “The State of TSCA Reform”, January 2011]

TSCA, the Dog that Didn’t Even Bark By the numbers: 62,000 chemicals grandfathered in when TSCA was passed in 1976 Required testing on <300 in 34 years 5 chemicals have been regulated in limited ways 19 years since EPA last tried (and failed) to regulate a chemical: asbestos

TSCA - EPA faces key structural constraints in: Developing and sharing information about chemicals – High hurdle to require testing of chemicals – Heavy resource and evidentiary burdens – Inability to share CBI; claims are rampant

TSCA - EPA faces key structural constraints in: Acting on information it does manage to obtain – Virtually no criteria to identify chemicals warranting action; instead, case-by-case – No mandate to assess existing chemicals – Near-impossible hurdle to regulate

What has TSCA accomplished? Regulated 5 “existing” chemicals – PCBs. Banned in – CFCs, specifically fully halogenated chlorofluoroalkanes. Banned from spray cans in – Hexavalent chromium. Restricted from use in water treatment. – Dioxins/furans. Some restrictions on disposal. – Asbestos, but only new uses, flooring felt, rollboard insulation, and certain asbestos-containing paper. A comprehensive ban was shot down in 1991.

What has TSCA accomplished? And 4 “new” chemicals, all specialized amines & carboxylic acids used in metalworking, the only prohibition was the addition of nitrates & related compounds to the fluids, due to cancer risks

EPA “More than 30 years after Congress enacted the Toxic Substances Control Act, it is clear that we are not doing an adequate job of assessing and managing the risks of chemicals in consumer products, the workplace and the environment. It is now time to revise and strengthen EPA’s chemicals management and risk assessment programs.” EPA Administrator, Lisa Jackson Jan. 23, 2009

GAO GAO= Government Accountability Office, an arm of the US Congress 2009 Report: EPA lacks adequate information on potential health and environmental risks of toxic chemicals TSCA’s regulatory framework impedes EPA’s efforts to control toxic chemicals

Even the Chemical Industry "TSCA is in dire need of modernization." Cal Dooley, President, American Chemistry Council, Congressional testimony, February 26, 2009 "In our view, TSCA is a sound statutory and regulatory system. It... provides a high level of health and environmental protection in the manufacture and use of chemical substances.“ Mike Walls, Managing Director, American Chemistry Council, Congressional testimony, August 2, 2006

REACH The EU’s REACH- Registration, Evaluation, Authorisation and Restriction of Chemicals – was adopted Dec. 2006, effective July 2007 “REACH places the burden of proof on companies. To comply with the regulation, companies must identify and manage the risks linked to the substances they manufacture and market in the EU.” ECHA - European chemicals agency Took 7 years to pass, will take 10 years to implement

US State laws “Since 2003, state legislatures have become leaders in protecting public health from toxic chemicals. Between 2003 and 2011, 18 states passed 81 chemical safety laws. In 2011 alone, a total of 36 states introduced toxics legislation and 11 policies passed in 8 states”. State laws regulating: BPA, phthalates, lead, cadmium, mercury, etc., etc. Many had nearly as much Republican support as Democratic!

Downstream businesses Healthcare, building, retail, electronic and cleaning product, & other sectors Concerned about health and business impacts, if the products they use or sell contain toxic chemicals Want to cut costs of regulation, hazardous waste storage and disposal, worker protection, future liabilities Also: new business opportunities, make U.S. businesses more competitive, create new jobs

The Safe Chemicals Act of 2011 (S.847)S.847 Introduced April 2011 by the late Senator Lautenberg (D-NJ), had 26 co-sponsors, including all OR, WA, & CA Senators. All were Democrats. Passed out of committee in July 2012, with some amendments that addressed industry concerns- but vote was still along party lines Reintroduced in 2013 session, 30 Democratic co-sponsors

Safe Chemicals Act: Industry would bear the burden of proving its chemicals are safe, instead of government having to prove harm to health before being able to regulate a chemical. Information on the health and environmental impacts of chemicals would be required to be developed by companies and disclosed to the public.

Safe Chemicals Act: Industry would be required immediately to reduce use of or exposure to chemicals of greatest concern, including those that are toxic, persist in the environment, and build up in people. Companies would have to substantiate that any information they want to keep secret is a legitimate trade secret, and most such confidentiality claims would expire after 5 years unless resubstantiated.

Safe Chemicals Act: EPA would establish a program to develop market and other incentives, promoting innovation and green chemistry

Green Chemistry “The design of chemical products and processes that reduce or eliminate the use and generation of hazardous substances.”

Chemical Safety Improvement Act S. 1009, introduced May 2013 Currently 25 co-sponsors, 12 D, 13 R Would require EPA to determine whether a substance poses an unreasonable risk to human health or the environment under the manufacturer’s intended conditions of its use EPA would sort commercial substances into two categories: high priority for assessment, low priority for assessments

Chemical Safety Improvement Act For chemicals on the high-priority list, EPA would have to judge whether each poses an unreasonable risk EPA would undertake a detailed analysis: benefits, cost, and risks of the chemical and feasible alternatives to it given its manufacturer’s intended conditions of its uses

Chemical Safety Improvement Act If the analysis so indicated, EPA would be required to take regulatory action against the chemical, such as: requiring warning labels; limits on the amount that can be manufactured, processed, or distributed; or a ban or phaseout of a substance

Chemical Safety Improvement Act - what’s the verdict? “directly addresses the major flaws of TSCA” “sincere effort to cut through Washington gridlock” “preserves the same inadequate safety standard” “may actually be worse than current law” “a sneak attack on fundamental liberties”

Chemical Safety Improvement Act Concerns: Pre-empts state and local regulation, including existing regs. such as California’s Prop 65 Uses a standard of “unreasonable” risk Does not adequately protect children, pregnant mothers, other vulnerable groups Lack of deadlines & timetables Does not implement international treaties that the US is nominally a party to, such as Stockholm Convention on POPs

Chemical Safety Improvement Act Concerns, cont: Other “anti-democratic” provisions: interferes with states’ right to sue & their access to courts (while continuing to allow companies facing enforcement to go to any district court), and the right of citizen suits to compel agency action

Safer Chemicals Healthy Families Coalition: “It has significant flaws. However, a critical mass of... experts can also see a clear path to fixing those flaws and there is interest from Senators in both parties to do so.”

CSIA current status Committee hearing held July 31, 2013, Senator Barbara Boxer (D-CA), Chair : "Now that we have concluded our in-depth hearing, it is very clear that certain principles must be the center piece of any toxic chemical reform bill moving forward. 1. Specific protection for our most vulnerable populations including children; 2. Timeframes for EPA to act on the most dangerous chemicals; 3. Protection of our families by ensuring that states have the ability to act on harmful toxins; and 4. Protection of all victims to hold all responsible parties to account in case of harm."

What can you do about it? Contact your senator Write a letter to the editor Learn more from organizations working on the issue Join the NAHMMA Policy Committee

NGOs Environmental Defense reform reform Lowell Center- Chemicals Policy & Science Initiative Safer States Safer Chemicals Healthy Families

NAHMMA Policy Committee NAHMMA’s Policy Committee focus: Product Stewardship + Chemical Policy Reform – Support legislation, state & federal – Partner with other organizations – Educate members click on “About Us”, click “Committees” click “Policy”

NAHMMA supports Chemical and Product Policy Reforms that incorporate the following principles: Foster production of safer, less hazardous products. Shift responsibility away from government to producers (brand owners), for acquiring and sharing data on toxicity and environmental impacts in the case of chemical policy, and for management at end of-life in the case of product stewardship. Incorporate the costs of developing safer products and managing them at end of life into the producers’ cost of doing business.

Include industry compliance as a condition of sale of products. Include a continuing role for government in overseeing programs to ensure public safety, environmental quality and a level playing field for businesses. Continue to address problems chemical-by- chemical and product-by-product as needed, but work toward a comprehensive framework approach. Preserve the rights of local and state governments to regulate beyond federal regulations.