Chemical industry fights for speed, confidentiality in reform battle

As Congress considers updating the Toxic Substances Control Act, lawmakers should make sure not to emulate other countries' mistakes, they said, which could prevent American companies from leading the world in developing new chemicals.

That 1976 law "established a rigorous process to evaluate and approve new chemistries in a way that protects health and the environment, enables continuous innovation and allows new, transformative products to come to market," said Craig Morrison, chairman of the American Chemistry Council's executive committee and chief executive of the Momentive chemical company.

"Ensuring that this remains the case as part of any effort to reform and modernize [the Toxic Substances Control Act] should be a top priority," he added.

Congress has long tried to update that law, which gives the Environmental Protection Agency (EPA) authority to regulate chemicals, and businesses and safety advocates alike say it is out of date. But the best way to protect both the public and businesses' trade secrets remains a question.

"We want EPA to have information to make good decisions about a chemical, however we must be careful about disclosure of that detailed information," said Rep. Phil Gingrey (R-Ga.), the vice chairman of the Energy and Commerce subcommittee on the Environment and Economy.

Though the EPA has 90 days to review applications for new chemicals, it does not require tests on them before they are introduced to the market. Instead, the agency can only test chemicals that it determines pose a threat to safety or that will be produced in large amounts.

That puts the agency in a "Catch-22," according to Heather White, the executive director of the Environmental Working Group, because the agency is forced to determine whether a chemical poses a risk without subjecting it to rigorous trials.

"It's like grading students without actually asking them to take a test," she said.

Chemical companies denied that their substances are not adequately tested.

"The underlying assumption that if the EPA doesn't force the test it isn't done — they don't have to force the test in many cases, because it's already being done by us," said Morrison.

He added that chemical companies have the most to lose if chemicals are not properly tested.

"The risks would overwhelm any sales potential," Morrison added.

Some Republican members of the subcommittee worried that the environmental concerns were overly reactionary.

"I'm wondering how often we get to hysteria levels on some things," sad Rep. David McKinley (R-W.Va.).

Industry executives worried that U.S. reforms would copy the European model, which requires new tests on all chemicals heading to the market.

Switching to that model would mean that "in some cases, we would not be able to innovate at the same rate," Morrison added.

The difference, he noted, is why American companies make three times as many chemicals as those in Europe and Japan.

However, current rules could change in negotiations between the U.S. and Europe over the terms of a free-trade agreement, as well as in a new chemical law.

That prospect concerned companies, which also worried about confidential information falling into foreign governments' hands and the increases in animal testing that might be required by switching to the European model.

In May, legislation was introduced in the Senate by Sen. David Vitter (R-La.) and the late Sen. Frank Lautenberg (D-N.J.) to update the Toxic Substances Control Act.

Lawmakers in both parties, as well as industry executives, have praised that bill, though a number of safety and environmental groups have opposed it.

The Vitter and Lautenberg bill would require that the EPA screen all new chemicals for safety, but also protect companies' trade secrets.