February 22, 2024 / Mark Ames

Senators Question EPA’s Implementation of TSCA

Image Credit: Getty Images / LD

When President Joseph Biden relaunched his Cancer Moonshot, he reignited "a national effort to end cancer as we know it." The Cancer Moonshot spans more than 15 federal agencies, offices, and departments, and part of it is focused on understanding and preventing toxic and environmental exposures. Here, EPA plays a starring role, using the authority granted to it under the Toxic Substances Control Act (TSCA), as amended in 2016 by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, to, among other things, protect workers by regulating the testing, reporting, recordkeeping, and restrictions of chemical substances and mixtures.

While many support the spirit of TSCA, EPA has become embroiled in controversy for repeatedly missing key statutory deadlines, bottlenecking innovation, and its handling of risk evaluations. EPA has pushed back, citing a lack of resources and difficulties hiring qualified personnel with needed technical expertise. The agency has pledged to do better while seeking to place shared responsibility with Congress for the current state of affairs.

With discontent growing over EPA's implementation of TSCA, the U.S. Senate Environment and Public Works Committee recently held an oversight hearing with EPA Assistant Administrator Michal Freedhoff to explore EPA's handling of the law.

The hearing began with Chairman Tom Carper of Delaware extolling EPA's TSCA-related achievements including completing the first 10 priority chemical reviews established under the 2016 amendments and taking actions to streamline and accelerate chemical reviews. Chairman Carper quickly acknowledged the challenges EPA faces while highlighting tensions between the agency and its stakeholders.

"EPA has been tasked with high expectations and a heavy workload, but has not always been equipped with the necessary funding to complete this technical work," Carper said. "Insufficient resources, over the course of multiple fiscal years, have led the agency to miss deadlines and delay decisions. This situation has created grievances from both those in industry pushing to get their chemicals to market and from environmental advocates eager to see harmful chemicals regulated."

Sen. Shelley Moore Capito of West Virginia used her opening statement to build on Chairman Carper's remarks, stating that "the status quo needs to change." Capito expressed concern that EPA is inappropriately stepping into the jurisdiction of OSHA and charged that "a troubling zero-risk approach at the EPA has taken hold of the TSCA program. … The zero-risk approach undermines the intent of the 2016 amendments and, ironically, will hamstring the Biden administration's ability to realize its own goals."

Freedhoff used her prepared testimony to highlight EPA's accomplishments under TSCA, stating that proposed rules for just five chemicals would protect 1 million workers and 15 million consumers. She also stated that EPA is expanding its toolbox for risk evaluations and improving its understanding of occupational safety practices. While acknowledging the pressure on EPA to move quickly on its TSCA responsibilities, she stated, "I refuse to accept that we have to choose between safety and speed." Even so, Freedhoff emphasized that a root cause of delays is a lack of funding.

"We don't need to change the law," Freedhoff said. "We need funding to implement the law we have."

Throughout the balance of the hearing, senators engaged in a tug of war with each other and with Freedhoff. Capito focused on the relationship between EPA and OSHA, highlighting an area of concern and confusion expressed by many AIHA members. "How do you put the bright line between where you are and where OSHA is?" Capito asked. "It sounds like you have more than enough on your plate. I am not sure you want to go into what OSHA is doing as well."

Freedhoff responded that TSCA requires EPA to consider risks to workers and that OSHA freely admits that many of its standards are outdated and inadequate to protect worker health. She emphasized that EPA is working closely with OSHA, NIOSH, and industry to align with activities and best practices.

Other senators expressed concern with perceptions of political influence on EPA's implementation of TSCA, asking how people can be confident that EPA is actually considering the views of others and has not already made up its mind on certain chemical substances. Freedhoff cited EPA's multi-year process for developing proposed rules, which involves a peer-review process and several opportunities for public comment.

The hearing concluded with Carper emphasizing the bipartisan nature of TSCA and the 2016 amendments. "Passing TSCA was a hard thing to do," Carper said. "We have a responsibility to make sure it is being implemented in the spirit it was intended. … We also have a shared interest in both protecting people from exposure to harmful chemicals and preserv[ing] our nation's ability to compete and bring innovative chemicals into the market."

In the aftermath of the hearing, three things were clear. First, senators from all perspectives joined together in a common desire to protect workers and support innovation. Second, the senators and witness all learned from each other. And finally, the fundamental tensions at the heart of EPA's struggle to implement TSCA in a way that satisfies everyone remain unresolved.

Mark Ames

Mark Ames is AIHA’s chief advocacy officer.


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