Monday, February 22, 2010

USEPA Revising Enforceable Consent Agreement Procedures to Generate TSCA Chemical Test Data

On Friday, February 19, 2010, EPA published in the Federal Register a proposed rule to revise the procedures for developing Enforceable Consent Agreements (ECAs) to generate test data under TSCA. This seems to be yet another way that EPA is using the current TSCA authority to its fullest ability, as Administrator Lisa Jackson indicated she would do when she first took over the Agency.

According to the Federal Register notice, the main features of the ECA process that EPA is proposing to change include "when and how to initiate negotiations and inserting a firm deadline at which negotiations will terminate." There is also a proposal to amend several sections of 40 CFR part 790 to put all the ECA provisions in one section and the Interagency Testing Committee (ITC) information in a separate section.

ECAs are agreements between EPA and the manufacturers of chemicals to conduct specific testing on a particular chemical substance. They help provide data to EPA that then can be used to make assessments. But the key is that the ECA procedure gets data to the Agency without the Agency having to first make risk or exposure findings (which is hard to do without the data they can't request before they do it) or to promulgate a Section 4 test rule (which takes forever to do).

But the average time to negotiate an ECA has been two years, with negotiations for several chemicals taking much more than two years. And that is just to negotiate the ECA, after which the company would have several years to complete the testing, then another period of time for EPA to evaluate the data, then more negotiations to determine the remediation path forward if a concern is identfied. On top of this, many ECAs that begin negotiations never get finished. So the idea of this proposed change is to make the ECA negotiation process more efficient, more flexible, and more transparent.

As noted, the proposed rule was published in the Federal Register on Friday and the comment period is now open. Comments must be received on or before March 22, 2010. After that EPA will evaluate the comments, make any necessary adjustments in response, and then issue a final rule with a date in which it will go into effect.

So it seems there continue to be two roads that both lead to changes in how chemicals are regulated. On the current road EPA is trying to move from a crawl to a walk and maybe to a run. But it's clear that the old dirt road of the past will be replaced with a new paved road of the future. The question remains, however, whether the new road will be a superhighway at rush hour or one at off-peak hours with respect to efficiency and efficacy.

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