TSCA is a ch-ch-changing....Some Take Away Points from the Recent EPA Chemical Action Plans

I mentioned before that the UESPA issued four "action plans" on December 30, 2009 (which seems oh so long ago already). I followed it up with a note about how industry and EPA were "butting heads" a bit about the action plans. Today I'll offer a few "take away" points from this event.

First, this is new for EPA. They have decided that they must more forcefully apply what they believe is their current authority under the Toxic Substances Control Act (TSCA). In Administrator Jackson's words, EPA will implement TSCA "to the fullest extent possible."

Second, EPA is showing that it intends to employ every weapon in its arsenal. The action plans include use of Section 4, Section 6, Section 5, SNURS, TRI, DfE/Green Chemistry, voluntary stewardship and international programs, etc. EPA is leaving no stone unturned.

Third, they are pushing the envelope as far as they can go. One example is the use of a Section 5(b)(4) Concern List rulemaking, which they hope to start as early as this fall. This is an unprecedented action even though the provision has been on the books since TSCA was enacted in 1976. It allows EPA to establish a "chemicals of concern" list for chemicals the Agency feels are in need of more draconian restrictions.

Fourth, this is only the beginning. Depending on industry reaction, EPA intends to push out new action plans every four months. Never has EPA acted so aggressively in the past.

Okay, enough with the "EPA makes aggressive use of existing TSCA authority" stuff. Despite these seemingly forceful actions the reality is less chilling. Most of the actions are planned for a later date. For example, while a concern list action for phthalates is planned for fall of this year, the Section 6 rulemaking isn't planned until 2012. And even here the action plan is phrased as "Consider initiating TSCA Section 6 rulemaking..." So they may "consider" it and never follow through. And even if they do, a rulemaking can take months or years to complete. Other plans have even longer target dates. So in reality most of the action right now is on planning action rather than taking action.

Another thing to take away is that the chemicals in these first actions plans are "low-hanging fruit." Most manufacturers of PBDEs have recently agreed to voluntarily phase out their production and use in the US (and some of the PBDEs are banned already in Europe and some states). Similarly, Dupont agreed a while back to phase out PFOA and related chemicals. Phthalates are already being targeted at the municipal and state levels. And short-chain chlorinated paraffins are also already being looked at closely. So to some extent EPA is just reinforcing what is already happening with respect to reducing use and exposure to these four chemicals. Obviously, future action plans would be expected to get higher in the fruit tree.

So there you have it...a few take away points from the recent EPA action plans. I'll keep up on the TSCA chemical reform process and report it here as it happens.