Chemical Ecotoxicity

The new symbol is fairly simple: A red diamond surrounds a cartoon of a dead tree above a dead fish. Under a new international system, materials packaged in a container bearing this pictogram are considered environmentally toxic.

In the U.S., the dead tree and dead fish symbol is at the center of a debate that could test the bounds of the Environmental Protection Agency's authority to regulate commercial chemicals. Some activists calling for an overhaul of the federal chemical control law see the issue as a way of demonstrating how little regulatory authority the agency has under the Toxic Substances Control Act (TSCA).

The U.S., like most countries around the world, has pledged to implement the Globally Harmonized System (GHS) for classifying and labeling chemicals (C&EN, May 23, 2005, page 31). This international system involves a series of pictograms for properties such as corrosiveness, flammability, and environmental toxicity. GHS is intended to help protect human health and the environment and to facilitate global trade in chemicals. It is supposed to be in place internationally by 2008.

In the U.S., adoption of GHS is triggering changes in a broad range of existing regulations for commercial chemicals. The Department of Transportation has folded GHS requirements into rules governing the transportation of and placards for hazardous materials. The Occupational Safety & Health Administration is changing its hazard communication standard, which covers workplace labels and material safety data sheets, to include GHS symbols. The Consumer Product Safety Commission, meanwhile, is studying how to adopt the system for consumer goods. And GHS is expected to bring changes to pesticide labels regulated by EPA.

Under the new international system, a country must change its existing regulations affecting chemicals so they are aligned with GHS. In addition, governments have the option of adding GHS-related rules in areas that have never been regulated.

In the U.S., that's where the dead tree and dead fish symbol comes in.

EPA does not now require commercial chemicals that can be hazardous to the environment to carry aquatic toxicity labels. The agency is pondering whether to propose, as part of the U.S. implementation of GHS, an aquatic toxicity scheme for classifying and labeling these substances.

The agency also has the option of doing nothing in regard to aquatic toxicity labeling because EPA is required to implement GHS only in its existing labeling requirements, which cover pesticides and certain new commercial chemicals. But EPA could opt to devise an aquatic toxicity labeling system for commercial chemicals already on the market that could be instituted through a regulatory program or a voluntary effort.

Any EPA program for aquatic toxicity labels would rely on existing data about a chemical's aquatic toxicity and would not require manufacturers to conduct new tests, according to Charles M. Auer, director of EPA's Office of Pollution Prevention & Toxics.

If the agency launches a regulatory or voluntary program on aquatic toxicity labeling, it would do so in concert with the changes OSHA will propose to its hazard communication program, according to Auer. This would be easier on companies because it would require them to modify their product labels only once, incorporating GHS alterations to satisfy both agencies simultaneously.

EPA asked its National Pollution Prevention & Toxics Advisory Committee to ponder the issue and suggest what the agency should do regarding aquatic toxicity labels. At a June 14-15 meeting, members of that panel gave mixed recommendations.

Several of the advisers, who represent industry, state, tribal, or environmental groups, indicated that a voluntary labeling program probably wouldn't work well. There are few incentives for any company to put the dead tree and dead fish symbol on its products voluntarily, they pointed out.

Many of the advisers, such as Jessine Monaghan, manager and counsel for regulatory programs at GE Plastics, said EPA needs to demonstrate the benefits to the environment of aquatic toxicity labeling before placing a regulatory burden on industry.

"Will this help protect the environment for generations to come?" asked Laura Weber, director of solid waste management for the St. Regis Mohawk Tribe.

William J. Greggs, Procter & Gamble's associate director for corporate sustainability, pointed out that EPA must decide whether a voluntary program or a rule on aquatic toxicity labels would affect just manufacturers and importers of chemicals or would include processors and distributors as well. Steven Russell, American Chemistry Council assistant general counsel, said EPA would have to demonstrate that there are greater benefits from a rule also covering processors and formulators than from a labeling requirement focused only on manufacturers and importers.

Auer told the advisers that if EPA goes forward with a plan, it would "wrestle with these issues." TSCA gives the agency authority to require manufacturers, importers, processors, and distributors to affix labels to their products, he asserted.

But Joseph H. Guth, executive director of the California League for Environmental Enforcement Now, expressed doubts about whether an EPA effort to require aquatic toxicity labels could withstand challenges in federal court. EPA would use its authority under Section 6 of TSCA to require the labeling. But the agency can issue rules under this provision only if it has amassed evidence that a chemical poses "an unreasonable risk" to health or the environment and it has regulated "using the least burdensome requirements," Guth said. This legal standard has been difficult for EPA to meet, he said.

Most notably, a federal court in 1991 overturned EPA's ban on asbestos, a known human carcinogen, under Section 6 of TSCA. In the ruling, the court laid out a detailed rationale that the agency must meet to regulate under this provision. These standards could force the agency to make a legally defensible case for each chemical for which it would require an aquatic toxicity label, Guth said.

Given the court ruling in the asbestos case, Guth added, he doubts that the agency could successfully use Section 6 as the basis to require labels on an entire class of chemicals, those EPA deems toxic to aquatic life.

Auer said the agency could use another section of TSCA to create a category of chemicals—a class encompassing "ecotoxicants"—for the purposes of regulation. EPA then could require aquatic toxicity labels via its Section 6 authority.

Many of the advisers said EPA needs to carefully analyze its TSCA legal authority before it decides whether and how to act on aquatic toxicity labels.

Nonetheless, Thomas Neltner, director of training and education at the National Center for Healthy Housing, urged EPA to pursue an aquatic toxicity labeling program for commercial chemicals. "If EPA feels it has the authority, it should go ahead," Neltner said.

Guth pointed out that environmental and health activists are calling on Congress to strengthen TSCA in light of a 2005 report by the Government Accountability Office that highlighted potential shortcomings of that law (GAO-05-458). But these calls have been met with claims that the statute is a powerful one not in need of improvement. EPA should test that assertion by attempting to require the aquatic toxicity labels, Guth said.

An EPA rule on those labels, if taken to court, could test arguments on the need for TSCA reform, he said.

If EPA determines that it does not have the legal authority to require aquatic toxicity labels under TSCA, the agency should explain this publicly, Guth added.

Joel A. Tickner, assistant research professor at the University of Massachusetts, Lowell, also urged EPA to test the boundaries of TSCA. If other countries require aquatic toxicity labels for chemicals, the U.S. should, too, under the new international system, he said.

Most of the advisers endorsed further EPA analysis of the issue.

"Not everything [in GHS] is going to make sense to implement" in the U.S., commented James Cooper, manager of government relations for the Synthetic Organic Chemical Manufacturers Association.