USEPA Streamlines Enforceable Consent Agreement Process

One of the ways that EPA has to collect data on chemicals is to use an "enforceable consent agreement (ECA)."  These ECAs are semi-pseudo-voluntary (sort of) agreements in which industry (more or less) consents to provide EPA with test data on their chemicals.  This saves EPA from having to go through the long, oft-times futile, process of promulgating a formal Section 4 test rule.  For industry, it gives companies a chance to negotiate the terms of the testing program, including what tests to run, what to test, and how long they have to finish the work.

But EPA and industry alike have been frustrated by the time it takes to negotiate the ECA.  So yesterday the EPA published the final rule in the Federal Register.  It not only allows EPA to set a firm deadline on when negotiations must end, but also changes how EPA can initiate the discussion.  The rule becomes effective on October 18, 2010.

The new ECA rule is just one of many steps the EPA has taken in the last two years to take full advantage of the authority it has under the Toxic Substances Control Act.  In the past EPA has been slow to push its authority, and in fact has been rather gun-shy about mobilizing resources for efforts it felt would just be for naught anyway (10 years of work to ban asbestos and then have it voided by the courts will do that to an Agency).  But times have changed, at least EPA believes they have changed.  Industry has been supportive of a modernization of TSCA, and while the legislative process on developing a new law is painstakingly slow, they seem less inclined to challenge EPA's new-found assertiveness.

Of course, the election may change that.

The "New TSCA" and POPs, PBTs, and International Chemical Treaties

This summer the House introduced a formal TSCA reform bill, following up on the "discussion draft" issued in April when the Senate introduced their version of TSCA reform.  One measure that didn't get a whole lot of press (but about which I tweeted) was how the bills dealt with the big international chemical treaties to which the US had never ratified.  Those treaties are the Stockholm Convention, the Rotterdam Convention, and the LRTAP POPs protocols.  All deal with a small list of specific chemicals that exhibit persistent, bioaccumulative, and toxic characteristics, i.e., PBT.  The variation, Persistent Organic Pollutants (POPs) have similar criteria, and then there are those chemicals that are Very Persistent and Very Bioaccumulative (vPvB), which may pose future concerns whether or not they currently meet the toxicity criterion.

The House discussion draft was pretty fuzzy as to how the new TSCA would help the US ratify the agreements, but the formal H.R. 5820 directs EPA to implement "provisions of international agreements" that are "related to chemical substances and mixtures" to which the United States becomes a party.  In fact, the House bill now looks much like that suggested back in May by CIEL, the Center for International Environmental Law.  The bill also mirrors the CIEL analysis by including a provision to regulate a newly listed chemical beyond what the treaties themselves allow.  And if the US fails to ratify the three treaties, the House bill would go ahead and ban the five chemicals listed as POPs anyway.  A bit of a nudge to get the treaties ratified.

Of course, whether these provisions survive next year's iteration of the bills is always a question.

EPA holds hearing on HPV chemical test rule

As noted a few weeks ago, EPA is working on a new proposed test rule for High Production Volume "orphan" chemicals.  The rules are authorized under Section 4 of TSCA and are designed to obtain test data that the Agency needs to better assess risk.  That was the third such rule proposed.  Well, last week EPA held a public hearing to get input on the proposed rule.  And not everyone thought testing was needed.

The sometimes odd pairing of industry and animal welfare groups again were on the same side, with industry objecting to the need to conduct some of the testing and animal welfare groups like PETA objecting because much of the testing uses animal models like rats.  Others were supportive of testing, noting that without actual data it is difficult for EPA to make sound scientific assessments of risk.

Since this is a proposed rule it will need to be finalized and published again in the Federal Register before manufacturers will be required to provide data.  EPA Chemical Control Division chief Jim Willis suggested that the final rule for this third group of HPV chemicals could be issued within 6 to 9 nine months, though he admitted that timeline was optimistic.  It seems even more optimistic when one considers that the 2nd proposed HPV orphans rule was issued in July of 2008 and to date that one still has not been finalized over two years later (though Willis did suggest it may be made final within the next month or so).

Meanwhile, EPA is working on a 4th proposed rule, though it seems it is still in the very early stages of development.  Look for that one sometime in 2011.

So while Congress sits on the proposed TSCA reform bills, EPA is trying to work within the current TSCA system.  Given that all of these test rules are for chemicals that are HPV "orphans," that is, chemicals produced in high volumes yet for which none of the manufacturers stepped forward voluntarily to provide data under the HPV Challenge program, it seems that TSCA has only limited ability to address chemical concerns in a timely fashion. 

New Polling Data Indicates Overwhelming Public Support for Chemicals Regulation

My title is cribbed from the Safer Chemicals Healthy Families (SCHF) announcement of a new poll conducted by the Mellman Group.  According to SCHF, the public opinion poll "finds overwhelming public support for reforming our out-of-date system for managing chemicals."  Furthermore, this support apparently was "regardless of political affiliation," in that "voters are much more likely to support a candidate for public office who promotes better health and safety standards for chemicals."

I haven't read the entire poll yet, but the results SCHF reports are actually somewhat surprising.  Despite the current political environment that seems to favor less government intervention, and at least according to SCHF, there is widespread concern about our exposure to chemicals:

The majority of respondents said they think the threat posed by everyday exposure to toxic chemicals is serious (73%, with 33% saying it is "very serious"). 78% said that the threat posed to children by exposure to everyday toxic chemicals is “serious.” (45% called the threat “very serious.”)

Not surprising, however, is that the poll also seems to suggest that the public looks unfavorably on the chemical industry, with 45% of the public viewing the industry in a bad light.  That pretty much is status quo for the chemical industry, who despite their stewardship efforts are often seen as the bad guys (usually when some chemical is in the news or we find out it is in the blood stream of babies).

All of this plays out in a time when it is likely nothing will happen with TSCA reform this year.  With only a handful of actual legislative days left on the calendar, and a lot of incumbents facing their most challenging reelection bids ever, Congress is in no hurry to pass a bill.  So that 74% of the public that supports stronger controls on "toxic chemicals" will have to wait until at least next year.  And with Congress likely to look a lot different when it gets sworn in next January, the fate of TSCA reform could range from a bill that is workable to no bill at all.

A PDF of the poll can be seen here or on the Safer Chemicals Healthy Families web site.

Small Chemicals Business Group Says No to New Regulations

The Society of Chemical Manufacturers and Affiliates (SOCMA) issued a call last week for Congress "to avoid imposing large, new financial burden that would threaten their businesses."  SOCMA is concerned that several pending bills, in particular "those to reform the Toxic Substances Control Act (TSCA) and another designed to tighten chemical security laws by mandating product substitution, could significantly add to the financial burden of complying with regulation."


Organizations like SOCMA serve the batch, custom and speciality chemical industry, which are mostly smaller and mid-size companies.  Unlike the bigger multinational companies, these smaller producers have fewer resources to deal with new requirements. 

Which is why the TSCA reform proposals on the table now have provisions to help small and medium sized businesses.  Whether they are enough or sufficiently balance the needs of specialty businesses with the needs of the public to know that chemicals have been demonstrated to be safe is still open to debate.  As SOCMA notes, there is a "high likelihood that the next Congress to convene early next year will look very different from this one."  And that could mean significant differences in what the final TSCA reform bills look like.