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U.S. House of Representatives Initiates Series of Hearings to Discuss the Toxic Substances Control Act

On June 13, 2013, the House Environment and the Economy Subcommittee of the Energy and Commerce Committee held a hearing entitled “Title I of the Toxic Substances Control Act: Understanding its History and Reviewing its Impact.”  Given the attention the Toxic Substances Control Act (TSCA) is receiving in the Senate, Committee Chair John Shimkus (R-IL) expressed the need to examine TSCA and be open to legislation to update and reform the 37-year old statute.  This hearing is the first in a series intended to discuss TSCA and enhance the Subcommittee’s understanding of the law and its operation.

Witnesses testified that overall TSCA is a simple and logical statute that provides a good framework for the introduction of new chemicals in the U.S.  Certain aspects of the statute however do present difficulties for EPA.  In discussing the regulatory scheme under TSCA, Kathleen Roberts of B&C Consortia Management, L.L.C, indicated that EPA’s implementation of TSCA is challenged by the length and complexity of the prescribed rule-making process.  Charles Auer of  Charles Auer & Associates, LLC, and Alfredo Gomez, Director, Natural Resources and Environment, U.S. Government Accountability Office (GAO), both noted that EPA has faced difficulties implementing testing requirement under TSCA § 4 (Testing of chemical substances and mixtures) and § 6 (Regulation of hazardous chemical substances and mixtures).  When asked if TSCA discouraged the development of green chemicals Beth Bosley, President, Boron Specialties, L.L.C., indicated that TSCA § 5 provides a fast and efficient process for developing and introducing new, often greener, chemicals.  Ms. Bosley added that the efficiency of TSCA § 5 is reflected in the large number of chemical patents in the U.S.

Committee member Paul Tonko (D-NY) expressed concerns that TSCA is ineffective in removing harmful chemicals from use and does not require sufficient public disclosure regarding chemical hazards.  Daniel Rosenberg, Senior Attorney, Health and Environment Program, Natural Resources Defense Council, also articulated substantial concerns.  Specifically, Mr. Rosenberg criticized EPA’s handling of existing chemicals, highlighting the fact that of the 62,000 existing chemicals, EPA had only taken § 6 action against five substances.  A § 6 action places increased regulatory requirements on a substance that presents an unreasonable risk of injury to health or the environment.  Jeanne Rizzo, President and CEO, Breast Cancer Fund, also conveyed dissatisfaction with TSCA, criticizing the requirement that EPA must demonstrate a chemical is unsafe prior to requesting safety data from a manufacturer.  Ms. Rizzo advocated that instead of requiring the EPA to demonstrate that a chemical presents an unreasonable risk, the company seeking to register the chemical should be required to demonstrate the chemical’s safety.