ACA Participates in Briefing with Congressional Staff on TSCA Modernization

ACA staff on July 16 participated in a briefing for the U.S. House of Representatives Energy and Commerce Committee's staff group on modernization of the Toxic Substances Control Act (TSCA), during which ACA presented its position that, as currently written, the Discussion Draft, "Toxic Chemicals Safety Act of 2010," is riddled with flaws that will lead to a stifling of job creation in the paint and coatings industry as well as throughout much of the manufacturing and construction sectors that utilize our industry's products. Instead, ACA urged steady, meaningful chemicals management reform that is based on risk-based, sound science that will enhance health and environmental safety.

In introducing our industry to the Congressional work group, ACA President Andy Doyle underscored the number of employees engaged in the manufacture and distribution of necessary products that are applied to over 70 percent of the U.S. Gross National Product (GNP).

The Toxic Chemicals Safety Act of 2010 introduced by Sen. Frank Lautenberg, accompanied by Discussion Draft legislation submitted by Reps. Bobby Rush and Henry A. Waxman, are the two legislative vehicles seeking to undertake the massive overhaul of TSCA. As drafted, these legislative proposals would expand U.S. EPA's authority to require manufacturers and importers to provide any data needed to determine a chemical's safety and to take action beyond what TSCA currently permits to restrict chemicals that may pose a high risk to the public. The legislative proposals would also place a tremendous burden on industry to demonstrate that such substances are safe, in order to remain in the market.

In particular, ACA highlighted three troubling matters presented by the current Discussion Draft, as follows.

Mixtures

The Discussion Draft amends TSCA Section 8(b) to include chemical substances and chemical mixtures in the TSCA Inventory.

This expansion of the scope of TSCA to include chemical mixtures will have an immediate and significant impact on the paint and coatings industry: the proposed legislation would require every single color of paint to be treated as a separate chemical mixture. There are literally millions of color variations available in paints and coatings, and this bill would require each of those variations to have a minimum testing data set requiring increased animal testing.

For example, just the testing of the thousands of colors of "beige" paint would result in millions of laboratory animals being used unnecessarily. ACA stressed that the total projected industry costs for this redundant and unnecessary testing of mixtures could be well in excess of our industry's current total annual sales, or possibly more than $25 billion, which would most certainly lead to plant closures, and job losses throughout our industry, with attendant impacts on our customers operations and employees.

Risk Based Exemptions

Many if not all the provisions for risk-based exemptions included in the current version of TSCA Section 5 have been removed in the proposed discussion draft, which will have an immediate deleterious effect on our industry. For example, the current discussion draft would consider an automobile as " thousands of articles" requiring each of its component parts to be evaluated. In the past, bolts, nuts, and screws, as well as painted mechanical parts have been considered outside the scope of TSCA. Requiring the registration of every article in every product produced in the U.S. including cars and many other painted products would stifle the U.S. economy and produce no measurable gains for health, safety and the environment.

Also, the Discussion Draft does not contain the polymer exemption currently found in TSCA Section 5 pre-manufacture notification (PMN) requirements. EPA has taken great care in deciding which types of polymers should be eligible for this exemption, rightfully concluding that certain polymers should be exempted under TSCA because they do not present an unreasonable risk to human health or the environment.

The Discussion Draft removes this polymer exemption and would require EPA to waste limited human and financial resources verifying what is already known, that many polymers are safe.

Confidential Business Information

A glaring lack of protection for Confidential Business Information (CBI) in Section 14(c) of the Discussion Draft would prohibit the identity of chemical substances from being treated as CBI. This is a serious threat: in paints and coatings, the incorporation of a new chemical often is essential to enhance the performance characteristics, and to distinguish one brand from another.

New product development is costly and uncertain, and companies seeking innovation, do not want to share their findings with their competitors. The paint and coatings industry invests hundreds of millions of dollars in efforts to produce new and innovative products.

This R&D and innovation effort is critical to maintaining the competitiveness of our industry as well as the competitiveness of manufacturing industries that use our products. The very limited CBI protections in the discussion draft would act as a disincentive for such innovation, with the consequence of keeping innovative products off the market.

For example, an extensive amount of research and development (R&D) is underway in the United States for developing coatings with lower or zero volatile organic compounds (VOCs), and other environmentally preferred products. When advancements find there way to the marketplace, they are the prized intellectual property.

If such intellectual property cannot be protected through legitimate CBI claims, there will be (1) less R&D done in the U.S. with a loss of R&D jobs, and (2) products will not be made in the U.S. resulting in a loss of manufacturing jobs. Finally, these products will not be sold in the U.S. which will result in a loss to consumers seeking environmentally preferred alternatives.

For more on ACA's position on TSCA reform and key concerns, click here.

For more information: contact ACA's Stacey-Ann Taylor or Steve Sides.

Date Posted: July 22, 2010