Chemical Reform Bill Would Shift Burden of Proof to Industry

Washington, DC — New legislation introduced in Congress aims to overhaul the United States' 34-year-old chemicals law by making industry, instead of the government, responsible for proving the safety of chemicals.

The Safe Chemicals Act (SCA), introduced by Representative Bobby Rush (D-Ill.) and Senator Frank Lautenberg (D-N.J.), would bring sweeping changes to the Toxic Substances Control Act (TSCA) of 1976, which governs the way the U.S. handles the 84,000 chemicals in use.

Industry, health and environmental groups agree that the law needs to be updated, and while all have expressed support for the proposed bill, there is also disagreement with parts of it.

One of the biggest reforms proposed by the SCA would change who is responsible for showing that a chemical is safe or dangerous.

Currently, the U.S. Environmental Protection Agency must meet a high burden of proof to show that a chemical is unsafe enough to be regulated. Asbestos is pointed to as the most glaring example of the TSCA's shortcomings. Asbestos, which is banned in more than 30 countries, is still allowed to be used in the U.S., after a court ruled in 1989 that the EPA could not regulate it.

The Safe Chemicals Act would instead require chemical makers to show that their products are safe.

The new bill would also require companies to provide a minimum set of data for every existing and new chemical. The data would be made public and would have to be provided before chemicals are introduced to the market. Currently, very few chemicals have been required to be tested and there is no requirement for minimum data sets.

The TSCA law does not mandate that the EPA assess the safety of chemicals on the market. The proposed law would require all chemicals to be scrutinized to determine if they are safe or not.

And while assessing chemicals under the proposed law, the EPA would need to take into account all types of exposures to chemicals, and particularly take into account exposures to certain vulnerable populations such as children and pregnant women.

The SCA would also create a program for identifying communities that are hot spots of chemical contamination, and require the EPA to develop plans for reducing chemical exposure in those areas.

But while the Safe Chemicals Act would make big changes that many groups are in favor of, supporters of TSCA reform explained in a media conference call the areas that they feel the legislation is lacking.

While the bill would allow the EPA to expedite safety determinations and regulatory actions on known hazards like formaldehyde and certain flame retardants, it also does not provide authority for the EPA to immediately restrict the production and use of chemicals that have been proven to be unsafe through studies and bans in other countries.

Richard Denison, a senior scientist with the Environmental Defense Fund, said the new bill also contains a loophole that would allow hundreds of new chemicals to enter the market each year without first being proven to be safe.

Initially, new chemicals will be compared against a set of criteria (such as the amount that will be produced, if it's a known or suspected carcinogen, if it has been found in people's bodies through studies, etc.), and if that comparison raises any red flags, it will have to go through a safety determination before it can go on the market.

If no glaring issues are raised, the chemical can enter the market and go under a safety assessment years later. The SCA in its current form in the Senate would require all chemicals to go through assessments within 15 years. Denison and the Safer Chemicals, Healthy Families coalition feel the assessments for new chemicals should happen before anyone can get their hands on them.

“We think for new chemicals, you need to put the gate right at the beginning, so that we are not introducing new problematic chemicals into the market,” Denison said.

Another sticking point is that the bill would not require the EPA to adopt recommendations from the National Academy of Sciences regarding using the best and latest science to determine chemical safety.

Chemical and product industry groups also expressed mixed feelings on the legislation.

A statement issued by 16 groups including the American Chemistry Council, American Petroleum Institute, Soap and Detergent Association and U.S. Chamber of Commerce said, "We agree with certain concepts in the bill, such as: a risk-based approach to prioritizing chemicals for review, efforts to minimize animal testing and practical approaches to information and data development ... However, preemption provisions in this proposal will allow states to adopt regulations that are not uniform. We are also concerned about the proposed standard for decision-making."

The House of Representatives has already laid out a preliminary schedule of meetings for specific topics in the new bill, with plans to take committee actions in June or July, said Andy Igrejas, director of Safer Chemicals, Healthy Families. The Senate has not set any plans for hearings yet.

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