On July 22, 2010, United States Representative Bobby Rush (D-IL), Chairman of the Subcommittee on Commerce, Trade, and Consumer Protection, and Representative Henry Waxman (D-CA), Chairman of the Committee on Energy and Commerce introduced H.R. 5820, the Toxic Chemicals Safety Act of 2010, which would overhaul the Toxic Substances and Control Act (TSCA). According to ISSA reporting, Senator Frank Lautenberg also introduced his own TSCA reform bill, the Safe Chemicals Act of 2010 (S. 3209) the same day.

Industry and environmental groups both support efforts to modernize our nation’s chemical regulatory management system. However, industry groups, including ISSA, are concerned about certain provisions in the legislation as currently drafted and the negative impact it would have on product innovation.

The following is a summary of H.R. 5820 based on a report issued by the House Committee on Energy and Commerce which was issued contemporaneously with the introduction of the bill:

• Establishes a framework to ensure that all chemical substances to which people are exposed will be reviewed for safety and restricted where necessary to protect public health and the environment.
• Shifts the burden to industry to develop and provide data to the Environmental Protection Agency (EPA) that proves the chemical is “safe” for use in commerce. As currently drafted the bill would require that “processors” (aka companies that formulate chemical products) to provide data regarding the intended use of the product for the purpose of assessing human exposure.
• Ensures that non-confidential information submitted to EPA is shared with the public and that critical confidential information is shared among regulators, with states, and with workers in the chemical industry.
• Establishes an expedited process for EPA to reduce exposure to chemical substances that are known to be persistent, bioaccumulative, and toxic.
• Creates incentives and a review process for safer alternatives to existing chemicals, promoting innovation and investment in green chemistry.
• Creates a workforce education and training program in green chemistry, promoting and ensuring long-term viability of American jobs.
• Encourages the reduction of the use of animals in chemical testing.
• Allows EPA to exempt chemicals already known to be safe from requirements of the Act.
• Promotes research to advance understanding of children’s vulnerability to the harms of chemicals.
• Directs EPA to address community exposures to toxic chemicals in certain “hot spot” locations.
• Requires EPA to engage in international efforts to control dangerous chemicals.
• Ensures that EPA actions are transparent, open to public comment, and subject to judicial review, without unreasonable procedural burdens.
• Allows state or political subdivisions to impose requirements that are different from or in addition to the requirements set forth in H.R. 5820.
• Gives EPA the resources needed to carry out this Act.

Industry Concerns
ISSA supports the concept of shifting the burden of proof from government to industry—which is the focal point of reform in H.R. 5820. However, we are concerned with the approach taken by the bill and its potential negative impact on product innovation.

Under H.R. 5820, a manufacturer would be required to prove that any chemical offered in commerce does not result in significant risk or harm to the general public, and also be required to do “an assessment of the aggregate exposure” that occurs from all products with that chemical and from the ambient levels of that chemical in the environment. That is a burden that would be extremely difficult for any manufacturer to meet.

To illustrate, suppose you have a chemical that is part of a product and it is going to be a new use of that chemical substance. Under H.R. 5820, before a manufacturer could introduce the product into the marketplace, you would not only have to focus on the exposure and risk from that product to a consumer, but the manufacturer would also be required to determine all other uses of that chemical that are currently in commerce, and do an assessment of the aggregate exposure, and assess the ambient levels of that chemical in commerce.

The process of proving a chemical safe as currently set forth in H.R. 5820 would be extremely expensive and time consuming. In effect, it would serve as a serious impediment to product innovation. ISSA and other industry groups have taken the position that you can provide the same margin of safety to the general public by focusing on the exposures that are likely to occur from the chemical in the product that has been introduced into the marketplace.

In addition, the bill would allow state governments and political subdivisions to impose requirements that are different from or in addition to the requirements set forth in H.R. 5820. ISSA supports a federal policy that would regulate chemicals in commerce rather than a patchwork of state and local regulations that would make it difficult or even impossible to bring products into the marketplace.

Legislative Outlook
To move the bill forward, the Commerce, Trade and Consumer Protection Subcommittee held a hearing on H.R. 5820 last week that gathered input from chemical producers, users and environmental groups. Representatives of environmental and industry groups believe that it is unlikely Congress will pass a TSCA reform bill before the legislative session draws to a close later this year.