REACH hardly reaching into US chemicals regulation reform
In ‘Influence of the EU Chemicals Regulation on the US Policy Reform Debate: Is a ‘California Effect’ Within REACH?’, published in Transnational Environmental Law (TEL) in April 2013, I investigated whether the demanding EU chemicals regulation (REACH) had led the exporting US chemicals sector to lobby its government to follow suit. Some thought REACH, which entered into effect in 2007 and imposes obligations on EU manufacturers and third country importers alike, would have this effect (known as a ‘California effect’), but the article showed this was not the case. Since 2005, Democratic congressmen – most prominently Senator Frank Lautenberg – had made repeated but unsuccessful attempts to reform the old and inadequate US Toxic Substances Control Act (TSCA 1976). While in favour of some kind of TSCA reform, the chemicals industry had opposed every proposed bill as going too far. At the time of writing the article, during the first half of 2012, the debate about TSCA reform was in a deadlock.
Recently, TSCA reform has (re)gained momentum. After Republicans had steadfastly rejected the Lautenberg bills, 22 May 2013 saw the surprise introduction of a bipartisan bill proposing the so-called Chemical Safety Improvement Act (CSIA), S. 1009. The bill was tabled by Lautenberg (who passed away ten days later at the age of 89) and Republican Senator David Vitter, along with more co-sponsors from both parties. The Environmental Defense Fund expert Richard Denison applauded them for a ‘policy and political breakthrough’. So what did the senators hammer out?
If enacted, the CSIA requires the US Environment Protection Agency (EPA) to screen all ‘active chemicals in commerce’ and to label them as either high or low priority based on potential risk. Low priority chemicals are presumed safe and do not trigger further action, unless new information arises. For high priority chemicals, EPA must conduct a safety assessment by evaluating their hazard, use and exposure. Data and information already submitted in other jurisdictions – like the EU – explicitly has to be considered. An assessed chemical is deemed safe if ‘no unreasonable risk of harm to human health or the environment will result from exposure’ under ‘intended conditions of use’, with risks to be balanced with benefits. This definition is closer to the current TSCA standard than to previous reform bills in which a ‘reasonable certainty of no harm’ standard had been proposed. For a chemical that does not meet the safety standard, EPA shall decide on necessary requirements (from labeling, notices and record keeping to quantity limitations, phase-outs and bans).
In some aspects, the CSIA and REACH appear similar. Both include a comparable range of possible restrictions after evaluation against a standard of ‘no unreasonable’ (CSIA) or ‘no unacceptable’ (REACH) risk, balancing risks and benefits. In many regards, however, TSCA roots of the new bill and major differences vis-à-vis REACH become evident. The CSIA never transfers the burden of proof to producers. Most importantly, it contains no minimum data requirements for all chemicals (above a volume threshold). This is one of the reasons why most environmental and public health groups, including the large ‘Safer Chemicals, Healthy Families’ coalition, see the bill as clearly insufficient. Other criticisms concern the absence of any deadline for regulatory action and the preemption of state regulation on a federally regulated chemical – which is also criticized by state level officials.
In contrast, trade associations have warmly welcomed the new bill. Cal Dooley, president of the American Chemistry Council, called the proposal ‘a balanced, comprehensive approach’ and underlined industry input to it. Industry apparently still prefers a ‘risk-based’ approach, where additional data is only gathered for prioritized chemicals, to the ‘no data, no market’ regime of REACH. With Republican and business support, prospects for TSCA reform look much better now than a year ago. On content grounds, however, the current bill rather corroborates earlier indications that REACH’s reach falls significantly short of a real market-driven ‘California effect’.
Dirk Arne Heyen, July 2013
Heyen’s TEL article ‘Influence of the EU Chemicals Regulation on the US Policy Reform Debate: Is a ‘California Effect’ Within REACH?’ can be read without charge until the end of 2013 here.
You can see the Transnational Environmental Law (TEL) homepage here.