With TSCA Chemical Reform Almost Here - Will It Look Like the 2008 Kid Safe Chemical Act?

In anticipation of Senator Lautenberg's reintroduction of the Kid Safe Chemical Act, it is perhaps instructive to go back and look at what the last version of the Act required. The caveat, of course, is that the new version will be considerably different (one can hope), but it is likely that at least some of the basic principles from the bill introduced by Senator Lautenberg in 2008 will be included.

The Kid-Safe Chemicals Act of 2008, which would have required chemical manufacturers to demonstrate the safety of their chemicals and would have outlawed the sale in the US of any compound that lacks a minimum set of data, was introduced May 20, 2008 in the Senate by Frank Lautenberg (D-NJ) and concurrently by Reps. Hilda Solis (D-Ca) and Henry Waxman (D-CA) in the House. The legislation proposed that the minimum data required to have access to the US market would include information about whether a chemical has the potential to persist or bioaccumulate in human bodies or nonhuman organisms, whether it would irritate the skin; whether it would persist in the environment; whether it would harm reproduction or development; and whether it would degrade into other chemicals that cause harm. The legislation would expand the biomonitoring program currently run by the Center for Disease Control and Prevention, which would fund the extended program through user fees paid by chemical manufacturers.

The following from Senator Lautenberg’s office at the time gave some of the “highlights.”

Require Basic Data on Industrial Chemicals: Chemical companies must demonstrate the safety of their products, backed up with credible evidence. Chemicals that lack minimum data could not be legally manufactured in or imported into the United States.

Place the Burden on Industry to Demonstrate Safety: EPA must systematically review whether industry has met this burden of proof for all industrial chemicals within 15 years of adoption.

Restrict the Use of Dangerous Chemicals Found in Newborn Babies: Hazardous chemicals detected in human cord blood would be immediately targeted for restrictions on their use.

Use New Scientific Evidence to Protect Health: EPA must consider and is authorized to require additional testing as new science and new testing methods emerge, including for health effects at low doses or during fetal or infant development and for nanomaterials.

Establish National Program to Assess Human Exposure: The federal government’s Center for Disease Control and Prevention (CDC) is to expand existing analysis of pollutants in people to help identify chemicals that threaten the health of children, workers, or other vulnerable populations.

Expand the Public Right to Know on Toxic Chemicals: New, Internet-accessible public database on chemical hazards and uses will inform companies, communities, and consumers. EPA is to rein in excessive industry claims of confidentiality.

Invest in Long-Term Solutions: New funding and incentives are provided for development of safer alternatives and technical assistance in “green chemistry.”

Will the new Kid Safe bill include these provisions? That remains to be seen. I think it likely that the principles above will be conformed to the current EPA principles for reform presentated in the fall of 2009 by Administrator Jackson. And of course, we will have to wait until Senator Lautenberg introduces the actual bill.

Environmental Ministers Meet in Parma to Declare Their Intent to Protect Children's Health

Representatives of the 53 World Health Organization (WHO) Member States are meeting in Parma, Italy, this week to review the impact of national and cross-border environmental policies on the health status of the population of the WHO European Region. This is the fifth Ministerial Conference on Environment and Health in a process that started back in 1989.

Over 800 participants from countries across the European Region, including ministers of health and of the environment, representatives of the European Commission, intergovernmental and nongovernmental stakeholders, scientists and youth delegates, are taking part in the three-day event that ends today.

One expectation is that they will adopt "a declaration reinforcing their commitment to reducing major environmental risk factors (including unsafe water and sanitation, contaminated air and dangerous chemicals) and emerging global threats (such as climate change)." The declaration will commit governments to achieve clear goals in the next 10 years.

A priority goal for the meeting will be “the prevention of diseases arising from chemical, biological and physical environments.” To achieve this participants have identified a number of potential actions. These include:

* Using approaches and provisions set out in relevant international agreements, such as the Basel, Rotterdam and Stockholm UN Conventions, as well as protocols on heavy metals and on persistent organic pollutants such as Convention on Long-Range Transboundary Air Pollution.

* Contributing to the Strategic Approach to International Chemicals Management (SAICM) and to the development of the global legal instrument on mercury.

* Aiming to protect children by identifying risks posed by exposure to harmful substances and preparations – focusing on pregnant and breast-feeding women and places where children live, learn and play – and eliminating the risks as far as possible.

* Acting on the identified risks of exposure to carcinogens, mutagens and reproductive toxicants, including endocrine disruptors, and urging other stakeholders to do the same. A ban on asbestos in construction materials and other products by 2015 is being considered.

* Calling for more research into the potentially adverse effects of persistent, endocrine-disrupting and bio-accumulating chemicals and their combinations, and nanoproducts, as well as for the identification of safer alternatives. Developing and using improved health risk and benefit assessment methods.

Thoughts on the Final Senate Hearing on TSCA Chemical Control Reform

Yes, I said the final hearing. This most certainly will be the end of the hearings, marking number 5 or 6 (I lost count) over the last year in the House and Senate. Yesterday's hearing was rather brief, only a little over an hour, with Democratic Senators Lautenberg (NJ) and Whitehouse (RI) present for the duration and Republican Senator Vitter (LA) reading his very brief opening statement and then leaving. No other Senators participated, which is why the questioning was so brief.

So what was new? In short, not much (see full testimony on the EPW web site and also linked individually below). My sense was this was a perfunctory hearing as a courtesy to industry but that the bill is pretty much ready to be introduced. I would expect it within days and certainly no later than the end of the month.

The witnesses, all from industry, offered much similarity in their comments, though I think you could see a difference between the manufacturers and the downstream users of chemicals. The manufacturers, represented by Dow Chemical, Dupont, Boron Specialties (for SOCMA) and NPRA (petrochemical companies) generally focused on having EPA prioritize chemicals for further review, and then only for those chemicals require additional hazard testing and exposure information to be provided. There was a concern that the new law not impose restrictions and bans that would disrupt markets and uses. They felt that EPA should be given more power to require new information as needed, but that there should not be a REACH-like general data call-in for all chemicals based solely on tonnage and not relative hazard or risk.

The two downstream users, represented by Kaiser Foundation Health Plan and Construction Specialties, emphasized that they are ready and willing to move toward sustainable chemistry in their products but often lack the information they need to make decisions. They advocated a "know and disclose" policy in which chemical companies would be required to pass along sufficient information on the chemicals in products being purchased by downstream users so that downstream users can assess their best options. If needed, they felt a third party could be used to protect the confidential business information of the manufacturers.

In the end it seems there are basic questions that may result in some disagreement on the details of the new law, despite there being significant agreement by all stakeholders that TSCA must be modernized. In their public statements, industry clearly has indicated they believe EPA should do the up-front work of assessing the TSCA Inventory, prioritizing a subset of chemicals that need closer attention, and focusing their data call-in efforts only on that subset. They do not support a general data call-in along the lines of REACH, especially if there is no attempt to "reset" the TSCA Inventory beforehand (i.e., eliminate those chemicals on the Inventory that just are not produced any more).

Senators Lautenberg and Whitehouse, on the other hand, seem very much focused on the "protection of human health and the environment" side of the discussion. They clearly believe that we need health and safety data on all chemicals in the market place. Their public pronouncements indicate that they believe the onus should be on industry to provide sufficient data for assessment, but that they don't necessarily trust industry to make that safety determination themselves. Senator Whitehouse, in fact, in his final questioning yesterday, asked (rhetorically) whether it made sense to trust the chemical companies to avow safety of their products like we trusted the tobacco companies to avow safety of cigarettes. Perhaps not a particularly valid criticism, but it does seem to reflect the Democratic Senators' belief that industry should be required to provide data and EPA should be responsible for making a final safety determination.

Previous commentary on TSCA reform can be found by going here and scrolling down.

The LRTAP Convention Revealed...Plus Don't Forget Today's Senate Hearing on TSCA Chemical Control

In continuing my series highlighting the three international agreements mentioned at last Thursday's House Subcommittee hearing on TSCA Reform, today I examine the Convention on Long Range Transboundary Air Pollution. See my previous pieces on the Stockholm and Rotterdam Conventions.

The Convention on Long Range Transboundary Air Pollution, or simply, LRTAP, includes eight separate Protocols, of which the Protocol on Persistent Organic Pollutants is the most relevant to the present discussion. The POPs Protocol was adopted in 1998 and focuses on "a list of 16 substances that have been singled out according to agreed risk criteria. The substances comprise eleven pesticides, two industrial chemicals and three by-products/contaminants." The goal is to "eliminate any discharges, emissions and losses of POPs." Some of the chemicals are banned outright (aldrin, chlordane, chlordecone, dieldrin, endrin, hexabromobiphenyl, mirex and toxaphene), while others are scheduled for elimination at a later stage (DDT, heptachlor, hexaclorobenzene, PCBs). There are also some whose uses are severely restricted (DDT, HCH [including lindane] and PCBs).

As with the other Conventions, the LRTAP POPs Protocol allows member countries to add chemicals to the list to be banned or restricted. Here again the United States was involved in negotiating the original Protocol but never ratified it in Congress. Which means the US can send representatives to POPs meetings to argue their case, but has no vote when it comes down to deciding whether the chemicals should be listed. And listing essentially means the chemical will be banned, either directly or through the blacklisting effect of identifying the chemical as a bad actor. Thus, the US cannot fully exert its influence to protect US interests.

And don't forget today's Senate hearing!

Senator Lautenberg will chair a subcommittee hearing on "Business Perspectives on Reforming U.S. Chemical Safety Laws" in which "leaders of businesses that manufacture or use chemicals to examine their business perspectives on reforming U.S. chemical safety laws." This starts at 10:00 AM EST in the EPW Hearing Room (406 Dirksen).

Witnesses include:

Kathy Gerwig - Vice President, Workplace Safety and Environmental Stewardship Officer, Kaiser Foundation Health Plan, Inc.

Charlie Drevna - President, National Petrochemical and Refiners Association

Dr. Neil C. Hawkins Sc.D. - Vice President, EH&S and Sustainability for The Dow Chemical Company

Beth Bosley - Managing Director, Boron Specialties, On behalf of Society of Chemical Manufacturers & Affiliates

Howard Williams - Vice President, Construction Specialties, Inc.

Linda Fisher - Vice President, Safety Health and the Environment, DuPont

The Rotterdam Convention, Prior Informed Consent, and TSCA Chemical Reform

At last Thursday's House Subcommittee hearing on TSCA Reform, both Jim Jones of EPA and John Thompson of the Department of State mentioned that they thought the US should ratify three international agreements. Previously I took a look at the Stockholm Convention on Persistent Organic Pollutants. Today I'll examine the Rotterdam Convention on Prior Informed Consent.

The text of the Rotterdam Convention was adopted in September 1998 in Rotterdam, the Netherlands, and it entered into force in February 2004. It covers "pesticides and industrial chemicals that have been banned or severely restricted for health or environmental reasons." It stipulates that "severely hazardous pesticide formulations that present a hazard under conditions of use in developing countries or countries with economies in transition may also be nominated for inclusion in Annex III." Once listed a "decision guidance document" must be prepared that defines how the chemical will be banned or severely restricted.

One of the most critical parts of the Convention is Prior Informed Consent, or PIC. This means that any country that intends to import the listed chemicals must be informed of the status of the chemicals in other countries, including that they have been banned and why. The PIC provision is especially important for developing countries that may not have as robust a regulatory safety infrastructure to protect them from being a dumping ground for dangerous chemicals that are banned elsewhere.

Currently there are 40 chemicals listed in Annex III of the Convention and subject to the PIC procedure, including 25 pesticides, 4 severely hazardous pesticide formulations and 11 industrial chemicals. Many more chemicals are expected to be added in the future.

Like the other international agreements, the US helped negotiate it but Congress never ratified it. And so we can observe the preceedings but cannot vote when other countries want to add chemicals to the list. Ratifying the agreement will not only allow the US to better look out for our interests, it will also demonstrate that we are taking a place of leadership in our international obligations.