Two House Hearings, One Bad Theme

Today, separate House committees will hold hearings that address two federal agencies’ efforts to regulate toxic chemicals.  The House Energy and Commerce Committee’s Subcommittee on Environment and the Economy will hold its fifth hearing on issues arising out of ongoing efforts to reform the Toxic Substances Control Act (TSCA).  Simultaneously, the House Education and Workforce Committee’s Subcommittee on Workforce Protections will hold a hearing addressing, among other things, OSHA’s recent attempts to spur better protections for workers who face chemical hazards.  The two hearings have been framed differently and will feature different witnesses, but they share a common thread: each committee’s Republican majority is championing a worldview in which federal agencies should be restricted from engaging in the most basic form of protective action – gathering and sharing information about toxic chemicals’ risks.

The Energy and Commerce hearing, which has a rather conspicuous absence of EPA officials on the witness list, will focus on the provisions of TSCA that relate to chemical testing.  It is commonly accepted that EPA – and especially, the public – lack sufficient knowledge about the hazards presented by toxic chemicals in our environment.  TSCA does not set out minimum requirements for testing that companies must undertake before putting a chemical in the stream of commerce, so we are left to deduce potential toxicity from whatever information companies voluntarily disclose to EPA in their “pre-manufacture notifications” and EPA’s own analysis of potential toxicity using models that compare chemicals of similar structure and composition.  To make matters worse, some 60,000 chemicals were already on the market when Congress wrote TSCA in 1976 and their uses were grandfathered in, meaning that companies were not required to submit any testing information to EPA.  Expect witnesses at the hearing to agree that more information would improve the balance between protecting the environment and protecting chemical companies’ bottom lines.  But don’t expect them to agree on how to get more information.  As we wrote in a July 2013 Issue Alert, the best solution involves multiple pieces:  minimum data sets for all new and existing chemicals, prioritized review of those data sets, and information sharing between EPA and the European Chemicals Agency, which is pulling in large amounts of new information through its revolutionary REACH legislation.

The Education and Workforce hearing may only touch on chemical hazards, but when it does, the majority’s hyperbole will be remarkable.  Late last year, OSHA published a set of annotations to its regulations on chemical hazards.  For years, the agency has maintained tables that list permissible exposure limits (PELs) for chemicals commonly found in the workplace.  The PELs are supposed to identify “safe” levels of chemical exposure, but the numbers are tragically outdated – to the extent that most major employers refer to other standards to ensure that their workers are actually protected from chemical hazards.  The new annotations to OSHA’s PELs tables simply provide some of those other standards in an easy-to-access location, yet some advocates who purport to represent employers’ interests are arguing that OSHA is overstepping its regulatory authority and establishing new regulatory requirements without going through the proper administrative procedures.  On the contrary, I would argue that OSHA is merely providing employers a resource that they can use to ensure compliance with their longstanding “General Duty” to provide workers employment free of recognized hazards.

In both of these hearings, expect the Republican majority and their chosen witnesses to complain about the burdens that federal agencies are creating by encouraging further testing of chemicals and greater sharing of information.  Don’t expect them to grapple with the fact that their free market ideology is fundamentally rooted on an assumption that all market participants have equal access to perfect information, or that their efforts to undercut the agencies’ work only weaken their case for reliance on the market to solve our public health problems.