Friday, January 8, 2010

EPA and Industry Butt Heads on Recently Released Chemical Action Plans

On December 30, 2009 the USEPA released four "chemical action plans" that summarized the Agency's plan to regulate four chemicals: Phthalates, Short-chain chlorinated paraffins, Polybrominated diphenyl ethers (PBDEs), and Perfluorinated chemicals (including PFOA). That same day the largest chemical trade group issued a news release expressing "strong concerns about EPA's approach." EPA says that the scientific basis for selection of the four chemicals is sound and in accordance with the procedure outlined on its website.

That doesn't mean industry is satisfied. According to the news release, the organization "and its member companies are disappointed that the initial set of chemicals seem to have been selected based on little more than their current “high-profile” nature." They are also concerned about what they believe is a lack of transparency in the way the "action plans" were developed. EPA disagrees and says it has no plans to refine the process.

This little give-and-take between EPA and the major trade association representing industry is to be expected as EPA lays out its plans and industry reacts with challenges. While it's unlikely that EPA will change anything in the short-term, the action plans do provide quite a bit of wiggle room for future flexibility. For example, a couple of the plans indicate that EPA "will consider initiating Section 6 rulemaking" in 2012 or 2013, which gives another 2 or 3 years to work out voluntary phase outs of the chemicals (and in fact EPA recently announced such a phase out by the manufacturer of decaBDE). Even if EPA does initiate a Section 6 rulemaking, the process could take anywhere from months to years to complete, during which time lots of other things could happen.

So while a little tiff between EPA and industry might make headlines, what it really signals is that EPA is going to push the envelope on using the authority that it believes TSCA already gives them. Authority that EPA really hasn't been particularly forceful in using in the past. The reasons for doing it now are uncertain and perhaps quite complex. It may simply be that the new Administration wants to accomplish the worthwhile goals of "protecting human health and the environment." Or it may be that they know they might get sued for "overreaching" that perceived authority, which might light a fire under Congress to finally introduce a bill to modernize TSCA.

Either way, the next few months should be very interesting. Stay tuned!

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