January 26, 2011 Confronting Toxics Webinar Series: Federal chemicals policy and the role of the healthcare professional in 2011 With Richard Denison PhD, Senior Scientist, Environmental Defense Fund Lindsay Dahl, Deputy Director, Safer Chemicals Healthy Families coalition

Resource for health professionals:

The State of TSCA Reform Richard A. Denison, Ph.D. Senior Scientist January 26, 2011

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

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

Formaldehyde, Katrina and the FEMA Trailers

Drivers for TSCA Reform Major reform of others’ policies: REACH, CEPA State legislation and policy changes –Shift from bans to policies: CA, ME, WA GAO put chemicals on its 2009 “high-risk” list 1 of 5 top priorities of Lisa Jackson EPA: Principles for TSCA reform issued in Sep. ‘09 Congressional action: Oversight hearings, CPSC phthalate ban, BPA ban bill, Kid-Safe Chemicals Act Market demand, esp. from downstream users

ACC then and now (well, until July) "In our view, TSCA is a sound statutory and regulatory system. It is a robust vehicle that can effectively address emerging chemical issues... The American Chemistry Council believes that the Toxic Substances Control Act 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 "TSCA is in dire need of modernization." Cal Dooley, President, American Chemistry Council Congressional testimony, February 26, 2009

Why the shift? “The public’s confidence in the federal chemical management system has been challenged. ACC believes that appropriate modifications to federal law will help enhance public confidence that health and the environment are protected.” Cal Dooley, President, American Chemistry Council Congressional testimony, February 26, 2009 “In the absence of reforms to TSCA we are seeing a plethora of State actions that are serving to create tremendous uncertainty in our markets.... We think a robust reformed TSCA would remove the motivation for state by state regulation of chemicals.” Linda Fisher, Chief Sustainability Officer, DuPont Congressional testimony, March 9, 2010

National and State Environmental Groups (NRDC, EDF, Washington Toxics Coalition, Clean Water Action…. Environmental Justice Groups (Connecticut Coalition for Environmental Justice, WEACT, Just Transition Alliance…) Health-affected Groups (Autism Society of America, American Association on Intellectual and Developmental Disabilities, Breast Cancer Fund… Health Professionals (American Nurses Association, Association of Reproductive Health Professionals, Planned Parenthood, Mt. Sinai Children’s Environmental Health Center…) Concerned Parents (MomsRising, Learning Disabilities Assn.)

12 U.S. Legislation: Current and Proposed Toxic Substances Control Act of 1976 (TSCA) –Covers most chemicals used in industry and in commercial/consumer products –Excludes: uses in drugs, cosmetics, food packaging regulated by FDA uses in pesticides covered by EPA under FIFRA Reform legislation –Safe Chemicals Act (S. 3209) introduced by Senator Lautenberg –Toxic Chemicals Safety Act (H.R. 5820) introduced by Chairmen Rush and Waxman

Currently under TSCAUnder Reform Proposals DATA: Few data call-ins are issued, even fewer chemicals are required to be tested and no minimum data set is required even for new chemicals. Up-front data call-ins for all chemicals are required. A minimum data set (MDS) on all new and existing chemicals sufficient to determine safety is required to be developed and made public. BURDEN OF PROOF: EPA is required to prove harm before it can regulate a chemical. Industry bears the legal burden of proving its chemicals are safe. SAFETY ASSESSMENT: No mandate exists to assess the safety of existing chemicals. New chemicals undergo a severely time-limited and highly data- constrained review. All chemicals, new and existing, are to be subject to a full safety determination (for certain new chemicals, at some point after entry into commerce). TSCA vs. new proposals: Overview

Currently under TSCAUnder Reform Proposals SCOPE OF ASSESSMENT: Where the rare chemical assessment is undertaken, there is no requirement to assess exposure to all sources of exposure to a chemical, or to assess risk to vulnerable populations. Safety determination is based on aggregate exposure to all uses and sources, and must ensure protection of vulnerable populations. Full lifecycle of a chemical must be considered. REGULATORY ACTION: Even chemicals of highest concern, such as asbestos, have not been able to be regulated under TSCA’s “unreasonable risk” cost-benefit standard. Instead, assessments often drag on indefinitely without conclusion or decision. Chemicals are assessed against a health-based standard, with deadlines for decisions. EPA can restrict or place any conditions on use of a chemical needed to ensure safety. Chemicals with high hazard, exposure or risk are first to undergo safety determinations. TSCA vs. new proposals: Overview

Currently under TSCAUnder Reform Proposals CHEMICALS AND EXPOSURES OF HIGH CONCERN: No criteria are provided for EPA to use to identify and prioritize chemicals or exposures of greatest concern, leaving such decisions to case-by- case judgments. EPA is to expedite action to reduce use of and exposure to toxic chemicals that persist and build up in the environment and people. “Hot spots” where people are subject to high exposures are to be identified and addressed. INFORMATION ACCESS: Companies can claim, often without providing any justification, most of what they submit to be confidential business information (CBI), denying access to the public and state governments. EPA is not required to review such claims, and the claims never expire. All CBI claims are to be justified up front. EPA is required to review at least a representative sample of claims. Claims are to expire after a period of time unless renewed. Other levels of government are to have access to CBI. TSCA vs. new proposals: Overview

What happened last year? Senate: Sen. Lautenberg put his bill on hold, challenging chemical industry to bring him an R They never delivered one House: Industry asked for discussion draft, stakeholder process before bill intro, which they got Bill intro and hearing in July: ACC pulled out all the stops to kill the bill: claimed it’s a job killer, will stifle innovation, drive the industry to China Threw their own TSCA reform principles under the bus

Other chemical industry actions Filing negative comments opposing EPA efforts: –to require more robust chemical data reporting –to increase transparency and rein in CBI claims Lobbying OMB and the White House: –to block EPA chemical action plans –to keep EPA from developing a “chemicals of concern” list Our coalition is prioritizing supporting and pushing EPA ahead under current TSCA – even as we press for reform

What the new year brings We’ve renewed our commitment to dialogue with some downstream companies Some chemical companies have reached out to our coalition, seeing dialogue as best path forward and concerned about ACC’s behavior Others may well be pursuing pushing an industry bill through the House Stay tuned!

For more information EDF’s Chemicals Policy Webpage Safer Chemicals, Healthy Families I Am Not a Guinea Pig EDF Chemicals & Nanomaterials Blog