Issue Date: October 19, 2009
Chemical Rules Face Change
The Obama Administration recently unveiled its ideas for a congressional rewrite of the federal chemical control law. But the Administration isn’t waiting for Congress to act before it steers the Environmental Protection Agency’s policies on commercial chemicals in a new direction.
EPA Administrator Lisa P. Jackson is instituting reforms designed to step up protection of health and the environment. They will have major ramifications for the chemical industry.
First, she’s directed the agency to come up with strategies to address six controversial chemicals or chemical classes: bisphenol A, phthalates, benzidine dyes and pigments, brominated flame retardants, perfluorinated compounds, and short-chain chlorinated paraffins. This move boosts the chances that EPA will regulate them under the Toxic Substances Control Act (TSCA). Second, Jackson axed the George W. Bush Administration’s Chemical Assessment & Management Program (ChAMP), which had strong backing from industry.
Jackson also instructed EPA to develop an action plan for each of the six targeted substances. Each plan is supposed to lay out possible EPA actions that could range from doing nothing to asking manufacturers for toxicity or exposure data to issuing regulations to restrict a compound’s use. What’s more, EPA plans to issue new sets of action plans on other chemicals or families of compounds every four months.
EPA’s new action-oriented focus on a few substances “marks a significant shift toward trying to reduce risk from high-concern chemicals,” says Richard A. Denison, a senior scientist with the advocacy group Environmental Defense Fund. In contrast, during the Bush Administration, EPA simply called for more study of substances that were of possible concern to health or the environment, Denison says. Jackson, he argues, is striking a balance between asking for more toxicity or exposure data and actually managing chemical risks.
Some in the industry wonder what this new effort portends for EPA action against other commercial substances. “We’d like to have a better understanding of what this means in terms of the agency’s future prioritization efforts” for chemicals, says Michael P. Walls, vice president of regulatory and technical affairs at the American Chemistry Council, an industry trade group.
EPA’s efforts on behalf of the six listed substances aren’t stopping at the creation of action plans. The agency intends to dust off a section of TSCA that it hasn’t used in two decades. That part of the law authorizes the agency to ban, restrict, or require labeling of chemicals. EPA faces a significant chance, however, of having a federal court overturn such regulations.
The potential for legal challenges is based on a 1991 federal appeals court ruling that struck down EPA’s ban on asbestos products, which was issued under this part of TSCA. The court found that, despite the enormous case EPA assembled over 10 years to support the regulation, the agency failed to demonstrate that a ban was the “least burdensome alternative” for controlling health risks from exposure to asbestos.
That decision essentially made it too time- and money-intensive for the resource-strapped agency to ban, restrict, or require labeling of problematic chemicals—and tipped the odds in favor of the agency losing in court if it did.
Nonetheless, Jackson is unearthing this section of TSCA. “The Obama Administration intends to utilize all the regulatory tools available under TSCA, to the fullest extent possible, as part of this effort to enhance the chemical management program,” an EPA spokeswoman tells C&EN. But that’s all the agency is saying for now.
This EPA move raises questions for ACC’s Walls. “What’s changed?” he asks. “If there were perceived barriers to the implementation of TSCA regulatory authority before, have those barriers been resolved?”
But Kenneth A. Cook, president of the Environmental Working Group, an activist organization, sees that the Obama Administration is replicating a policy strategy for chemicals that it initially used on climate change (see page 30).
This approach involves working with Congress to develop and pass clean-energy and climate-change legislation that establishes new authorities for regulation of carbon dioxide emissions. But as a backstop, the Administration plans to use authorities given to EPA under the Clean Air Act to regulate these emissions. If finalized, the rule might well end up in court.
Similarly, Cook says, the Obama Administration is working with Congress on TSCA reform while simultaneously probing the extent of existing authorities, even if using them risks lawsuit.
If EPA issues a chemical ban or restriction under TSCA and a court overturns it, Congress and the public will have a clear demonstration that this law doesn’t work as intended, Cook says. This would pump up pressure on lawmakers for reform of the statute, he adds.
Trying to reenergize parts of TSCA is only part of Jackson’s strategy. She also killed ChAMP, a Bush Administration initiative to evaluate thousands of substances for their potential to harm human health and the environment. Under the program, EPA had a deadline of 2012 to complete risk characterizations for, and possibly regulate, more than 6,750 chemicals produced in or imported into the U.S. in quantities of 25,000 lb or more per year.
“We are disappointed by ChAMP being aborted,” says Dan Newton, government relations manager at the Society of Chemical Manufacturers & Affiliates, a trade association of batch and smaller chemical makers. “We think that this was a good program and was beginning to make some real progress.”
ChAMP depended heavily on toxicity information for high-production-volume (HPV) chemicals. These are substances produced or imported in quantities of 1 million lb or more per year and are a major subset of ChAMP chemicals. Manufacturers are voluntarily supplying data on nearly 2,000 compounds through the HPV Challenge Program, which was created by EPA, the Environmental Defense Fund, and ACC in 1998. Although the deadline for submissions under the program was 2005, EPA has yet to receive all the information promised (C&EN, June 9, 2008, page 33).
Under ChAMP, the agency also employed reports from chemical manufacturers that included data about the use of their products. EPA used the information to estimate exposure to HPV substances. But some of the reports have serious data-quality issues, including failure by some companies to supply required information, EPA officials say.
Now that ChAMP is gone, Jackson is directing EPA to quickly collect the hazard, use, and exposure data it needs to prioritize HPV chemicals for further review—and to decide whether and how the agency will regulate them. Under Jackson’s plans, EPA could issue rules to legally require chemical manufacturers to test or provide data on production and use of and human exposure to their compounds. The agency could also use TSCA to restrict novel uses of certain HPV chemicals.
Jackson has outlined a change of course for chemical policy at EPA. It leads through uncharted waters and only time will tell how well the agency will weather the journey.
- Chemical & Engineering News
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