Chemical spillsW.Va. spill leads lawmakers, industry to look at reforming toxic substances law

Published 13 February 2014

The government was slow to respond to the 9 January 2014 massive chemical spill in West Virginia because the law governing such response, the 1976 Toxic Substances Control Act (TSCA), limits regulatory agencies’ authority to investigate such spills.Under TSCA, the EPA must first prove that a chemical poses an unreasonable risk to health or the environment before it can require the needed testing that would show a potential risk. One observer called this a Catch-22, telling a congressional panel that “This is like requiring a doctor to prove that a patient has cancer before being able to order a biopsy.”

On 9 January 2014, crude 4-methylcyclohexane methanol (MCHM), a chemical primarily used to clean coal, leaked from a Freedom Industries’ storage tank near Charleston, West Virginia, and bled into the Elk River, upstream of a water-treatment plant, leaving more than 300,000 residents without access to clean tap water for days. The Elk River spill is but the latest in a long history of industrial accidents resulting from the concentration of chemical and coal-mining operations in the region, accidents which poisoned groundwater, spewed toxic gas emissions, and caused fires and explosions(see “The 9 January chemical leak in West Virginia is the latest in a long history of industrial accidents,” HSNW, 30 January 2014; and “NSF rapid response research grants to fund study of West Virginia chemical spill,” HSNW, 10 February 2014).

Members of the House Energy and CommerceSubcommittee on Environment and the Economy point to  the lack of sufficient data on the chemicals which  last month contaminated drinking water in West Virginia as an example of why the Toxic Substances Control Act (TSCA) needs to be reevaluated.

Representative Henry Waxman (D-California), the ranking member of the Energy and Commerce Committee, said that “that disaster illustrates the serious problems of current law.”

Bloomberg BNA reports that the Subcommittee on Environment and the Economy held a hearing on Sections 4 and 8 of TSCA. Both sections authorize the Environmental Protection Agency (EPA), respectively, to mandate new testing or the submission of existing information on chemicals in use in industry and commerce. The committee’s hearing will influence a bill which would update the core provisions of TSCA, a first attempt since the bill was signed into law in 1976.

Jennifer Sass, a senior scientist with the Natural Resources Defense Council (NRDC), testified before the House subcommittee. She said that two TSCA provisions prevented the EPA from obtaining the data on the leaked chemicals in West Virginia.

“First, EPA must essentially prove that a chemical poses an unreasonable risk to health or the environment before it can require the needed testing that would show a potential risk,” Sass said. “This is like requiring a doctor to prove that a patient has cancer before being able to order a biopsy. This ‘Catch-22’ construction of the EPA’s testing authority has greatly constrained the agency from getting data through testing,” she said. “Second, to require testing of existing chemicals, EPA must complete a full formal rulemaking. Other programs, including the pesticide program and even TSCA’s new chemicals program, instead allow EPA to require testing by issuing an order, a much more streamlined process,” Sass said.

Beth Bosley, president of Boron Specialties, a chemical manufacturing company, testified on behalf of the Society of Chemical Manufacturers & Affiliates. She suggested that the EPA should use a step-wise approach to obtain specific, targeted data. Such an approach will lead the EPA to order preliminary, less expensive, and quicker-to-obtain data. “A revised TSCA also should include mandates for the EPA to review a minimum number of chemicals in commerce annually or a particular percentage of chemicals,” Bosley said.

Robert Matthews, on behalf of the Consumer Specialty Products Association, said he agreed that the EPA must have data about exposure to chemicals in commerce. “CSPA supports the position that in order to better inform EPA’s understanding of exposure potential during prioritization and subsequent safety assessments of high priority chemicals, a modernized TSCA should expressly allow the agency to collect necessary use-related information from downstream formulators of consumer and commercial products,” he said.

Bloombergnotes that EPA could use a risk-based strategy to require manufacturers to provide chemical data, but toxicity and exposure data are needed to determine the probability that a chemical is harmful. Exposure data is costly and difficult to obtain so the EPA would have to rely on hazard information to decide whether additional data is needed to determine risk.

Sass claimed the agency has plenty of hazard data it can use, but Senate legislation — Chemical Safety Improvement Act (S. 1009) — “may prevent EPA from requiring testing for a chemical until [the chemical] has already been identified as a high-priority substance.” Under the Act, the EPA could not require data on a low-priority chemical. “The Chemical Safety Improvement Act (S. 1009), as introduced, will not solve the problems with current TSCA and in some respects will make things worse,” Sass said.