Print PDF

Practice Areas

Slow Going in EPA Efforts to Strengthen Chemical Safety, GAO Finds

Wednesday, May 01, 2013
Sandler, Travis & Rosenberg Trade Report

Efforts launched by the Environmental Protection Agency in 2009 to strengthen the safety of chemicals are proceeding slowly, the Government Accountability Office reported recently, and could take years to yield concrete results. These efforts are aimed at improving the agency’s management of hazardous chemicals under the Toxic Substances Control Act, a law passed in 1976 that the EPA has found difficult to implement. The GAO acknowledges that many of the challenges the EPA faces are rooted in TSCA itself and that Congress should consider making statutory changes, but states that even without legislation the EPA can do more within its existing authority.

Report Findings. The report states that since 2009 the EPA has made progress implementing its new approach to managing toxic chemicals under its existing TSCA authority, particularly by increasing efforts to obtain toxicity and exposure data. However, due to statutory requirements that place the burden of developing toxicity data on the EPA rather than industry, and because promulgating the rules needed to obtain toxicity data from companies can take years to finalize and additional time for companies to execute, the EPA has yet to obtain much of the toxicity data it has been seeking. Also, the EPA is in the process of analyzing exposure-related data it received in August 2012 and therefore is not yet in a position to use them to identify additional data collection needs or chemicals that may warrant further review or risk assessment.

Moreover, while the EPA’s toxicity and exposure data collection efforts may be useful for identifying chemicals that are potentially harmful, it is unclear whether these data will be sufficient for conducting a risk assessment. According to agency officials, both toxicity and exposure data are needed to conduct a risk assessment in order to demonstrate that a chemical presents or will present an unreasonable risk of injury to health or the environment, which would be required before the EPA could ban or limit the use of a chemical under TSCA.

The GAO states that there are several ways the EPA has not tried yet to obtain chemical data. For example, the agency could seek a formal agreement allowing it to receive toxicity and exposure data that companies submit to the European Chemicals Agency. It could also use its TSCA Section 8 authority to require chemical companies to report toxicity and exposure-related data they have submitted to the ECA or exposure-related data from processors. Instead, EPA officials said they are considering using the subpoena authority under TSCA section 11(c) to obtain this information.

Finally, the report states, it is unclear whether the EPA’s new approach to managing chemicals within its existing TSCA authority will position the agency to achieve its goal of ensuring the safety of chemicals because it has not clearly articulated how its strategy will address challenges that threaten its ability to meet its goal—particularly, challenges associated with obtaining toxicity and exposure data needed for risk assessments and with the EPA’s ability to ban or limit the use of chemicals, given past difficulties with taking such actions.

Call for Reform. Sens. Frank Lautenberg, D-N.J., and Kirsten Gillibrand, D-N.Y., said the GAO report highlights the need for Congress to pass the Safe Chemicals Act of 2013 that they reintroduced last month. A joint press release notes that under the existing law the EPA has only been able to require testing for roughly 200 of the more than 84,000 chemicals currently registered in the U.S. and to ban only five dangerous substances in nearly 40 years. The SCA (S. 696) would address these perceived deficiencies by (a) screening chemicals for safety by prioritizing chemicals based on risk, (b) requiring risk management (e.g., labeling, disposal, restricted uses or bans) of chemicals that cannot be proven safe, (c) establishing a public database to catalog the health and safety information submitted by chemical manufacturers while also protecting trade secrets, and (d) promoting innovation and development of safe chemical alternatives.

To get news like this in your inbox daily, subscribe to the Sandler, Travis & Rosenberg Trade Report.

Customs & International Headlines