Industry Groups Say Safe Chemical Act Does Not Include Republican Input

On Monday the Environmental Defense Fund issued a summary of the main provisions of the Safe Chemicals Act and how they "fulfill every detail" of the Industry "10 Principles" for TSCA reform as put forth by the American Chemistry Council. On Tuesday Industry addressed a letter to the Senate disagreeing with that contention, though not specifically rebutting it. The letter was signed by 69 chemical organizations representing "each step in the supply chain."

The basic premise of the letter is that Republican member input was not fully considered in the present Safe Chemicals Act passed out of the Environment and Public Works Committee late last month. The letter notes that "attempts have been made to characterize the current version of S. 847 as a compromise bill that could gain the support of Republicans and industry." The letter goes on to say that "this is not the case for the bill in its current form."

The industry letter confirms that industry "wholeheartedly support the continuation of a bipartisan process to discuss the right concepts needed in legislation to effectively reform the [EPA's] ability to regulate chemicals." Industry does not, however, believe that the current bill accomplishes this goal.

Now that the bill has been passed out of Committee it becomes eligible for a full debate of its merits on the Senate floor by all members of the Senate. Democrats in the Senate have indicated that they are more than willing to bring the bill up for debate, so it would seem that Industry and their Republican representatives in the Senate will have the opportunity to publicly present their views on what they agree with in the bill and what they do not agree with, along with solutions. Given that all stakeholders - Industry, NGOs, public health and environmental advocacy groups, parent groups, EPA and others - have agreed that TSCA needs to be reformed, it seems that the Safe Chemicals Act bill gives all parties the opportunity to move toward that goal.

The EDF comparison between the Safe Chemical Act and ACC "10 principles" can be viewed here.

The ACC "10 principles" document can be viewed here.

Further information on ACC's position on TSCA reform can be viewed on their web site.

New Safe Chemicals Act "fulfills every detail" of Industry's principles for moderning TSCA

Dr. Richard Denison, Senior Scientist at the Environmental Defense Fund (EDF), has "developed a detailed 8-page table that shows, side by side, the principles and the new version of the Safe Chemicals Act, with citations to each specific provision of the Act." The principles in question are the "10 Principles for Modernizing TSCA" issued by the American Chemistry Council (ACC), the major trade association for the chemical industry.

According to Dr. Denison, "the alignment is strong" between the "10 Principles" and the provisions in the Safe Chemicals Act proposed by Senator Frank Lautenberg and passed by vote out of committee for discussion and vote in the full Senate. The ACC statement issued following the committee vote indicated that "after a cursory review, we believe the bill is still fundamentally flawed in many critical areas." However, Dr. Denison notes that:

The changes made to the Safe Chemicals Act specifically reflected the input received from all stakeholders, including the converging views that have emerged from several industry-NGO dialogues held over the past 18 months.

He thus reaches the conclusion that "ACC’s complaints are more about politics than about substance."

Denison has provided a PDF link to his side-by-side table that details his comparison of the bill's provisions versus the ACC "10 Principles."


The full blog article by Dr. Denison can be read here.

House Finally Introduces H.R. 5820, the Toxic Chemicals Safety Act of 2010

Finally. After releasing a "discussion draft" in April to coincide with Frank Lautenberg's Chemical Safety Act introduction in the Senate, Representatives Henry Waxman (D-CA) and Bobby Rush (D-IL) yesterday formally introduced H.R. 5820, the Toxic Chemicals Safety Act of 2010.

According to Waxman and Rush, "the legislation would amend the Toxic Substances Control Act of 1976 to ensure that the public and the environment are protected from risks resulting from chemical exposure."

Key provisions of the Toxics Chemicals Safety Act of 2010 include:

* Establishes a framework to ensure that all chemical substances to which the American people are exposed will be reviewed for safety and restricted where necessary to protect public health and the environment.

* Requires the chemical industry to develop and provide to the Environmental Protection Agency (EPA) essential data, and improves EPA’s authority to compel testing where necessary.

* Ensures that non-confidential information submitted to EPA is shared with the public and that critical confidential information is shared among regulators, with states, and with workers in the chemical industry.

* Establishes an expedited process for EPA to reduce exposure to chemical substances that are known to be persistent, bioaccumulative, and toxic.

* Creates incentives and a review process for safer alternatives to existing chemicals, promoting innovation and investment in green chemistry.

* Creates a workforce education and training program in green chemistry, promoting and ensuring long-term viability of American jobs.

* Encourages the reduction of the use of animals in chemical testing.

* Allows EPA to exempt chemicals already known to be safe from requirements of the Act.

* Promotes research to advance understanding of children’s vulnerability to the harms of chemicals.

* Directs EPA to address community exposures to toxic chemicals in certain “hot spot” locations.

* Requires EPA to engage in international efforts to control dangerous chemicals.

* Ensures that EPA actions are transparent, open to public comment, and subject to judicial review, without unreasonable procedural burdens.

* Gives EPA the resources needed to carry out this Act.

I'll have more after reviewing the 166-page document.  The big question is how much of the input from the various stakeholders meetings since the discussion draft have made it into the final bill.  And now that it has finally been introduced on the virtual eve of the August recesses and upcoming mid-term elections, what will become of it.

House TSCA bill release delayed until next week

On Wednesday I noted that the US House of Representatives was expected to release the formal version of their TSCA reform bill this week. But the full responsible committee was tied up in Mark Ups of other bills all day yesterday, so the formal release is now planned for next Thursday, July 22nd.

A committee hearing is tentatively scheduled for the following Thursday, July 29th, and will be officially announced when the bill is introduced.

In April the House had released a "discussion draft" to coincide with the introduction of Senator Lautenberg's Safe Chemicals Act of 2010 bill. As previously noted, a series of stakeholder meetings were held following the discussion draft, and all stakeholders will be very interested to see how much of their input was incorporated into the formal bill. A good faith effort to acknowledge stakeholder concerns will help passage of the bill.

Though when that will happen is anyone's guess. It is highly unlikely to happen this session of Congress with control of possibly both houses uncertain, as I noted in a previous commentary. But no matter which party is in control of Congress, there is at least public support from all stakeholders to modernize the 34 year old law - industry to avoid a patchwork of state regulations and advocacy groups to strengthen EPA's ability to require data be submitted.

Formal House TSCA Bill Expected This Week

As previously discussed, Representatives Waxman and Rush have been having meetings with stakeholders on the TSCA reform "discussion draft" introduced in April. It appears they are ready to introduce the formal bill on July 15th. A hearing on the bill the following week is likely. What happens to it after that is less certain.

Expect to see several changes from the discussion draft to incorporate the input from industry, advocacy groups, EPA and others. All stakeholders are looking for a good faith effort on the part of the House committee staff to insert their feedback. Key stakeholders, including EPA Administrator Lisa Jackson, are likely to testify at the hearing.

But then what? In all likelihood, not much. There are only a handful of legislative days left before the mid-term elections and no one seems to be in the mood to do much legislating until then. Most are eager to get back to their districts and commune with voters in an effort to hold onto their seats. With anti-incumbent fever running pretty hot in the electorate, many legislators are hoping for some home-grown remedies.

Given the strong likelihood that nothing will pass this session, the House and Senate bills would have to be reintroduced in the next session of Congress, beginning in January 2011. And all parties are aware that major gains by the Republican party could have significant impacts on the final look of the bills, in particular if the current minority party gains the majority in either the House or the Senate (or both).

Based on the current status of things I would be very much surprised if the current bills, which lean more toward the advocacy group positions, don't migrate significantly toward more industry-friendly final bills in 2011. Which likely means that there will not be an across-the-board data call-in for all chemicals a la REACH. More likely there will be a focused data call-in on chemicals identified as priorities based on specific characteristics like persistence, bioaccumulation and toxicity (PBT) and/or likely carcinogenicity, mutagenicity or reproductive toxicity (CMR), or widespread consumer use and exposure.

More commentary after the bill is introduced.

House Chairman Presents "Must Haves" for TSCA Reform

Congressman Bobby Rush chairs the subcommittee that is in charge of developing the TSCA reform legislation in the US House of Representatives. Along with Henry Waxman, chair of the full committee, Rush introduced the House version of the Toxic Substances Safety Act in April. Recently he offered his views on what in his mind "must" be in the final legislation.

* First, revamped legislation must put the responsibility, and liability, for ensuring the safety of chemical substances squarely at the feet of the manufacturers who produce and sell the substances.

* The Federal government must have the ability to effectively monitor, test or otherwise oversee assorted industries through strengthened legislation.

* Legislation should protect populations that are the most vulnerable to ingesting or being exposed to environmental toxins, but are least able to obtain redress from their government.

* The Environmental Protection Agency should have greater oversight authority to allow it to quickly respond to evidence of environmental toxins.

* New chemical compounds should also pass rigorous safety standards before they are introduced to the marketplace.

The House has been holding meetings to hear from a variety of stakeholders on the discussion draft previously circulated. Apparently there has been cooperation across the aisle to come up with a workable bill to which both parties can agree. The hope is that the formal House legislation will be introduced this summer, but with only a handful of actual legislative days left in the term and a busy campaign season coming up, it's unclear if any action will take place in this Congress.

Will the November Elections "Reform" TSCA Chemical Reform?

As anyone reading my posts on this site knows already, the US Congress has introduced bills in the House and Senate to reform/modernize TSCA, the 34 year old Toxic Substances Control Act. But those following the process also know that this year is a mid-term election year and that the minority party - the Republicans - are expected to make substantial gains in the number of seats they hold. Some believe that the Republican party will gain the majority in either the House or Senate, or both.

So what does this mean for TSCA reform?

It could mean a lot. The Democratic majority in key committees is led by very environmentally minded leadership from California - Barbara Boxer for the Senate EPW committee and Henry Waxman for the House Energy and Commerce Committee. Frank Lautenberg from New Jersey has also taken the lead in the Senate as chairman of the relevant subcommittee in Boxer's EPW committee. A Republican takeover would put significantly less environmentally and health-aware chairs in place. Even significant gains in seats would shift the balance of power more into the Republican view, which tends to put more emphasis on industry than would the Democratic view.

So would Republican gains kill TSCA reform? No. At least, probably not. Industry is generally in agreement that modernization of TSCA is necessary, primarily because industry would rather deal with one federal-level law than a hodgepodge of 50 state laws (plus a few regional rules tossed in to further complicate compliance).

So while some sort of TSCA reform in 2011 seems inevitable, most would agree that it will be more industry-friendly than the current bills being offered.

Another major concern is funding of EPA. No matter what the final law looks like, and despite the desire to shift the burden of proof onto industry, it is clear that EPA will have much more work to do with the updated regulations. In short, much more information means much more review. In the EU, REACH created an entirely new agency to do the work. In the US, EPA has struggled with reduced funding for many years, and the current economic situation most assuredly will limit any new funding to deal with new mandates.

So what will the final Safe Chemicals Act look like? We don't know for sure. But it's a safe bet that after the November elections it will shift from the more environmental/health friendly tone of the current bills to a more industry friendly tone in the final bills likely to be reintroduced in 2011.

Two Symposia Examine Chemical Toxicity Testing in the US and Beyond

Two upcoming symposia will examine the development of new toxicity testing strategies in the midst of stakeholder negotiations with Congress over the recently introduced Safe Chemicals Act legislation. The meetings follow on to the 2007 National Research Council (NRC) report, "Toxicity Testing in the 21st Century: A Vision and a Strategy." The "NRC vision calls for a revolution in the science of testing chemicals for toxicity that will draw on major advances in scientific tools that are now available—or are rapidly evolving."

Three years later, how are we implementing these proposed changes, from a legal and policy perspective? What are the obstacles? What remains to be done? These two symposia will offer some answers. Both will be held in Washington DC but in two locations.

The Future of Chemical Toxicity Testing in the US: Creating a Roadmap to Implement the NRC's Vision and Strategy (Monday, June 21, 2010, 8am - 5pm, National Press Club)

The symposium will feature a keynote presentation by USEPA Assistant Administrator Stephen A. Owens and will convene a range of legal, policy, and scientific experts to discuss—

* The status of implementation of the vision for chemical toxicity testing three years after the NRC report was issued.
* What the federal agencies are doing—and planning to do—to ensure implementation of the NRC vision.
* Stakeholder perspectives on implementation across a range of viewpoints: industry, public health and environmental protection, the academy, and animal welfare.
* Where implementation of the NRC vision fits into a landscape of potentially broad legislative reform for toxic substances, harmonization with Canadian requirements, and scarcity of financial resources.

International Harmonization in Chemical Toxicity Testing: An EU Perspective on the Way Forward (Tuesday, June 22, 2010, 8am - 1:15pm, Johns Hopkins University School for Advanced International Studies)

EU regulations such as REACH and the 7th Amendment to the Cosmetics Directive have highlighted the crucial role of EU-US relations in the field of humane science. This symposium is intended to examine humane science and toxicity testing from the point of view of important EU stakeholders and experts. This half-day program features speakers from the European Commission, as well as policy leaders from major European corporations, member countries and academic institutions.

More information on both symposia, including agendas and speaker information, can be found at the symposia web site.

So how is TSCA related to the BP Deepwater Horizon oil leak?

Apparently the NGO coalition called Safer Chemicals, Healthy Families is planning to continue its very high profile, very high activity advocacy for TSCA reform. Last week they held a webinar on TSCA reform and yesterday they did a conference call with the press to "announce a proposal and to help reporters make the connection between Corexit, the worrisome chemical dispersant being used to clean up the Gulf oil spill, and our nation’s failing system for regulating such chemicals, the Toxic Substances Control act of 1976 (TSCA)."

SCHF claims that "[w]hat’s going on in the Gulf is not an isolated incident — it’s a very dramatic, very public example of our nation’s broken system for managing chemicals." They go on to say

In their attempt to reassure Americans that Corexit was no more dangerous than common household products, chemical manufacturer Nalco unwittingly highlighted the fact that, because our laws are so weak, it’s entirely possible that our household products are quite dangerous! The reality is, our laws don’t require companies to show household products are safe before they arrive under our kitchen sinks, any more than they have to prove chemical dispersants are safe before they get dumped into our oceans. Hardly reassuring.

The group released a comparison chart showing the provisions of TSCA as it currently stands and how the Senate and House bills could "fix the problem." They go further and recommend what they believe are necessary additions to the current Safe Chemical Act proposals that would have required dispersants to demonstrate safety BEFORE being used in emergency situations like the Deepwater Horizon disaster (indicated in red in the chart).

Needs of Downstream Users Critical to Safe Chemicals Act Developments

"The impact of chemicals on business is felt well beyond the factories where chemicals are manufactured or processed into other substances and mixtures," said Bob Sussman at last week's Business and NGO Forum on Safer Chemicals Policy Reform. Sussman, who is a senior policy counsel to EPA Administrator Lisa Jackson, went further and noted that "companies at the end of the value chain" have a unique position because they serve "a critical interface where the public comes into contact with chemical-containing products." As such, these downstream users (DUs) must play an active role in helping to define the developing Safe Chemicals Act (or Toxic Substances Safety Act in the House).

The forum was designed to do just that. Sponsors included the NGO Safer Chemicals, Healthy Families coalition, the Business-NGO Working Group, and the American Sustainable Business Council. Points of discussion included a widespread agreement on the need for transparency, harmonization with other chemicals programs, and an emphasis on encouraging development of safer alternatives. Unlike some of the chemical trade associations, members of the Business-NGO Working Group strongly support a minimum data set on chemicals to be generated within five years. In short, they want to see data on all chemicals, not just a select few, so that there is enough information on potential alternatives to make sure they aren't just as bad as the ones that are being replaced. That can't be done unless there are data on everything.

According to Safer Chemicals, Healthy Families, there is an expectation that votes on the House's Toxic Substances Safety Act could begin some time this month. Some even suggest that a floor vote could happen before the summer is up. Still, it seems rather unlikely that any bill will be passed by both the House and Senate this year given the paucity of actual legislation days left and the critical (and often contentious) mid-term elections on every legislators mind.

Petrochemical Manufacturers and Refiners Comment on TSCA Chemical Reform Bills

Specialty chemical manufacturer and downstream user positions on the proposed TSCA reform bills introduced on April 15th were discussed in previous posts. Today the National Petrochemical & Refiners Association weighs in on the topic. NPRA represents virtually all US refiners and petrochemical manufacturers, whose members "supply consumers with a wide variety of products and services that are used daily in homes and businesses."

Like others, NPRA is concerned that the House discussion draft "significantly broadens the scope of TSCA by substantially changing the definition of 'substance' and 'mixture' to include practically any manufactured or processed good." And that makes the proposed law totally unworkable in a practical sense. NPRA is also concerned that most actions could actually be taken by EPA without the current provisions of "public notice and comment," which they say results in a lack of transparency. The draft also eliminates most opportunities for judicial review, thus potentially allowing arbitrary and unchallengeable decisions by EPA.

NPRA also feels that while there has been much emphasis on green chemistry and innovation, the "draft legislation imposes barriers to innovation that will inhibit all chemistry, including green chemistry policy and goals." They offer as an example the minimum data set requirement, which they feel will "raise the barrier of entry into the marketplace for new products as there will be a large cost imposed on companies to conduct the required testing and gather the required information for a single product." They claim that there is "an inversely proportional relationship between barriers of entry and the number of products introduced into any given market." They note that the minimum data set requirement in Europe has allowed the introduction of only 4000 new chemicals while the US introduced 18,000 in the same period.

As with the other trade associations, NPRA talks about the issues they see with prioritization, imminent hazard provisions, lack of preemption of state regulations, fees, what they see as unnecessary the emphasis on giving PBT chemicals special attention.

I'll look closer at key issues that pop up in most of the comments in future posts.

Downstream User Groups Comment on Upcoming House TSCA Chemical Reform Bill

As the House readies its formal introduction of their version of the TSCA reform bill, called the Toxic Substances Safety Act, various stakeholders are offering their views on what it should include. Or more accurately perhaps, what it shouldn't include. Friday I talked about what SOCMA thinks in representing their mostly smaller specialty chemical manufacturers. Today are downstream user organizations such as the Consumer Specialty Products Association (CSPA), the Grocery Manufacturers Association (GMA), and the Soap and Detergent Association (SDA, soon to become the American Cleaning Institute).

Like other industry trade associations, these downstream user (DU) groups see the need for TSCA modernization. But they are also concerned about the burden this may put on DUs. One of their primary concerns with the discussion draft seems to be the language that would expand TSCA to cover all chemical substances, mixtures, and articles (things made from substances and mixtures). As written, they say, "every single change to a mixture and article would constitute a 'new use' and require notification and approval by EPA." Given that consumer product manufacturers routinely "substitute new ingredients, use alternate material suppliers, switch among color shades and scents, and tweak formulations to rebalance existing ingredients in different proportions," such language could become a nightmare for downstream users. Which is one of the reasons that I think the mixture and article provisions will likely be dropped from the final bill and dealt with separately.

The DUs have many other concerns as well, and some of which overlap the major and specialty manufacturers' complaints like, e.g., questions about the minimum data set, priority setting, safety standards, CBI, etc. I'll look at each of these in more depth in future posts.

SOCMA Comments on House Toxic Chemicals Safety Act Discussion Draft

As I noted yesterday, not everyone is happy with the way things are panning out on the House "discussion draft" version of the Toxic Substances Safety Act, aka, TSCA reform. House members have been having stakeholders meetings since it's unveiling in April, and a formal bill is expected to be introduced this summer. One stakeholder group, the Society of Chemical Manufacturers and Affiliates (SOCMA) is worried that “the potential universe of chemical substances, and the burdens of the new law, would skyrocket.” Specifically, they note:

1) The "sheer scope and the lack of definition" of the bill will be unworkable. Because EPA would receive "300 minimum data sets" within 18 months after it finalizes the priority list, and they would be required to act on them within 6 months, SOCMA fears that there would not be time for peer review and thus the safety determinations would be rushed and not in sufficient depth for decision-making.

2) The draft doesn't seem to authorize collection of data from downstream users, which means all the use and exposure data would still come from manufacturers, who don't always know how their chemicals are used by others.

3) The definition of "adverse effect" is so broad that it could include effects that intended, e.g., pharmaceutical uses. They are also concerned about what is meant by "cumulative exposure" as this seems to be unworkable in a practical sense.

4) The minimum data set is a concern, especially since SOCMA represents many small batch manufacturers. I discussed options for making this more workable in yesterday's post.

5) The discussion draft drops certain exemptions that were present in TSCA. For example, an "articles" exclusion is gone, which would mean that articles would be included in the requirements for data. Most outside parties feel this is a major road block to a workable law. The low volume exclusion is also gone, which means even the smallest production volumes would be required to present some base set of data.

SOCMA has several other concerns as well, including the proposed prioritization scheme, reporting, preemption, fees, and information disclosure, the latter of which is one of SOCMA's highest priorities. They are concerned that their membership, who as small companies are the innovators of the chemical industry, would be exposed to "corporate espionage" should the strict confidential business information protections be loosened.

There's more, and we'll see some of it come out as the discussion process moves forward. And of course once the House introduces the formal bill there will continue to be discussions over the details.

Chemical Industry Expresses Concern Over Developing Toxic Chemical Safety Act

As I mentioned two days ago, the US House of Representatives has been meeting with various stakeholders to get input into the development of the House version of the TSCA Reform bill. In April the House had issued a "discussion draft" while the Senate issued an actual bill. Well, there have been a lot of discussions. And not everyone is happy.

Industry is worried that the draft House bill would "significantly expand" the scope of the law. Frankly, that would seem to be a rather obvious conclusion given that the bill is being introduced because of the widespread belief that TSCA was insufficient. But there are some legitimate concerns as well. For example, small and medium size enterprises could be disproportionately burdened if all chemicals are required to provide the same "base set" health and safety data. These companies tend to be more specialty chemical oriented and produce much smaller volumes.

One solution is to institute a tiered approach to data requirements such as that found in the REACH regulation in Europe. Under REACH, chemicals produced in smaller amounts must only provide the data in the first of four "Annexes" listing data requirements. The first Annex is focused mostly on basic physical-chemical property data such as melting and boiling points, octanol-water partitioning (a measure of whether the chemical will stay in the water column or bind with organic materials such as those associated with sediments or biota), and water solubility. The first Annex also includes requirements for determining how quickly the chemical will biodegrade (e.g., in sewage treatment plants), whether it is toxic to aquatic organisms, and basic acute toxicity to animals.

Chemicals produced at higher tonnage bands are required to fulfill the data specified in up to three additional annexes, with the cost and complication of testing increasing with tonnage produced.

This tiered testing scheme means that companies that only produce small amounts would have much less onerous data needs. Those companies producing very large amounts, and presumably much greater sales income, would need to provide more.

Several of the industry trade associations have issued statements in response to the House stakeholder process and I will be examining specific issues raised in forthcoming days.

House expects to formally introduce its Toxic Chemicals Safety Act

Way back on April 15th Senator Lautenberg introduced his long-awaited Safe Chemicals Act of 2010. That same day Representatives Waxman and Rush in the House introduced a "discussion draft" of the companion bill, which they called the Toxic Chemicals Safety Act of 2010. While not much seems to be happening on the Senate side, a great deal has been going on in the House, and it appears that they will be ready to issue a formal bill very soon.

While they haven't been very public, the House has held a series of "stakeholder meetings" on several important, and sometimes contentious, topics. The meetings were by invitation only in order to find workable paths forward.

The first meeting focused on the minimum data set to be required for new chemicals, as well as EPA’s authority to require testing. The second meeting focused on options for handling new chemicals and new uses of existing chemicals. After that the subject was how to prioritize chemicals for "rapid action," in addition to how best to determine whether a chemical is safe for its intended use.

So will these meetings resolve all the issues and result in a standing ovation by all parties when the bill is formally introduced? Probably not. But it should help work out the details enough to have a solid bill for final debate. And it is likely that the key points resolved in the House version will carry over to the Senate version. Well, at least for the most part.

Not that it will matter much for this session of Congress. There are only 30 or so legislative days left on the calendar, and with a contentious mid-term election coming up in which Republicans are likely to pick up seats in both houses, there is little time or incentive for them to push things through. So it seems that this year is the year to work out the bugs so it can be reintroduced in early 2011.

But then, stranger things have happened.

Should US Chemical Regulation Look Like REACH? Perhaps it is Already Happening

Most in the United States agree that some form of TSCA Reform is necessary to allow EPA to better manage chemicals. On a macro-level their is broad agreement on the basic principles, though stakeholders tend to differ on the actual nuts and bolts of the proposed legislation. But one thing that you hear over and over, at least from industry, is WE DON'T WANT REACH!!

Seems Europe has a different view.

This week there has been a conference sponsored in part by the European Chemicals Agency (ECHA). Interested stakeholders and regulators from around the globe are in attendance. And one of the topics is the collaboration between ECHA and other world regulatory bodies. ECHA Executive Director Geert Dancet notes that "our view is that...in 20 years time REACH could be an element of a more global system." ECHA is looking for partnerships. And this week it is already signing an accord with Environment Canada to exchange non-confidential data and best practices on data management.

ECHA is also talking the USEPA and with NICNAS (the Australian regulatory body). In fact, it is expected that by sometime this summer the US will sign an agreement similar to the one that ECHA now has with Canada. This cooperation is to be expected, since a large percentage of the chemical companies in the US also manufacture or import in Europe so are already providing data packages.

All of this means that while there are many in the US that don't want TSCA reform to look too much like REACH, it is inevitable that there will be similarities in many respects. One goal of the final version of the Safe Chemicals Act (which likely won't happen until 2011) is to find a way to collaborate with ECHA so that companies that have already provided data to REACH can seamlessly use the data to meet future US obligations.

One issue not addressed in the proposed Safe Chemicals Act is exactly how data would be provided. I'll talk about that in future posts.

EU Coalition Argues that Regulations Help Innovation of New Chemicals

Yesterday I suggested that regulation under the newly proposed Safe Chemicals Act in the United States would actually stimulate innovation and development of new, safer chemicals in contrast to concerns by industry that regulation hinders innovation. In a timely piece of news, today I came across a new report published by the International Chemical Secretariat (ChemSec), a coalition founded by four non-profit organizations in Europe. ChemSec is the organization that previously released a SIN List of dangerous chemicals.

The report is called "Electronics Without Brominated Flame Retardants and PVC – a Market Overview" and the basic conclusion is that "greener, more environmentally-friendly electronics are possible!"

ChemSec notes that many companies are moving in this direction, and argues that "to stimulate this development, regulators, nationally and globally, have the opportunity, and responsibility, to establish legal frameworks confirming the elimination of replaceable, toxic chemicals used in electronics." They believe taht EU legislators can "confirm sustainable developments like the one reflected in the ChemSec Market Overview, by taking action on brominated flame retardants and PVC."

So apparently the RoHS Directive in the EU has stimulated innovation and development of alternatives that would not have been attempted if the costs of proving safety were not included in the business calculus. Thus, as I noted yesterday, it is highly likely that the Safe Chemicals Act will provide incentives for innovation. It can do this both by accurately counting the costs of safety and by providing financial and regulatory incentives for development of green chemistry.

Assuming that the bills actually are passed and become law.

Will TSCA Chemical Reform Hinder - or Help - Development of New Chemicals?

As Congress and stakeholders debate whether the newly introduced Safe Chemicals Act of 2010 will get passed this year, the chemical industry is concerned that the more stringent standards "could actually hinder the development of new products that could be safer than existing ones now 'grandfathered'under the old law."

But is that true?

Let's be honest. The first reaction to any new regulations, no matter the topic, is always the same. It will "kill jobs" and "hinder innovation." It's a mantra that is mimed whenever a new regulation is proposed, and frankly, no longer has any credibility. On the other hand, some regulations could, in fact, inhibit innovation. So which is it?

In looking at the history of innovation you see a mixed bag. But the bottom line is that regulation actually enhances innovation more than not. Why? Simply put, why come up with a new chemical that would make your old chemical obsolete when the old chemical is making you lots of money? Basic chemicals that were developed years ago have the advantages of:

1) a robust and mature market, where the chemical has been found to be useful in a variety of different product types,

2) established comfort zones, where customers are comfortable using your chemical in their products because they know they work, already have supply chains set up, and have streamlined operations to minimize costs and maximize profit margins,

3) being inexpensive, that is, relative to more recently developed chemicals that are still paying for substantial R&D costs, marketing efforts to get into new products, and no track record.

So given that there are essentially no costs to continuing to sell the old chemical, why spend lots of money developing a chemical that does the same thing (though perhaps not as well) except require you to convince current customers to switch to something more expensive? It just doesn't make economic sense.

Unless there is a cost to the old chemical. Of course, there is a cost, but that cost is "hidden" in the sense that any health or environmental costs are spread around to society as a whole (unless there is a huge spill, such as the current Deepwater Horizon in the Gulf). And how does one capture the actual cost of proving safety of chemicals (i.e., rather than wait until after the fact)? By requiring testing up front. So the health and environmental costs, if there are any, will be included in the costs of the manufacturer. If those costs are excessive, for example if the chemical is a substance of very high concern, a PBT, a carcinogen, mutagen or reproductive toxicant, then the company now has incentive to develop newer, safer, more innovative chemicals.

It's just basic free market economics. And all one has to do is look at what happens after some egregious regulation is passed that will "kill jobs" and "inhibit innovation." The ingenuity of companies is released and new products come on the market, usually quite quickly. Jobs are always being created in emerging technology areas while more mature technologies have been giving up jobs to overseas sourcing for decades.

So it is likely that the Safe Chemicals Act will encourage the funding and development of new, safer chemicals. Emergent and innovative companies and chemicals that are currently unable to break into established markets will have a better chance of competing. Requiring safety data on all chemicals, both existing and new, will ensure that dangerous old chemicals are not replaced with dangerous new chemicals.

And the poor guy who has the "next best thing" but can't get his foot in the door because no one wants to lose their biggest suppliers will finally get a seat at the table.

EPA sends new chemical "action plans" to OMB for review

EPA continues to try to make the "old TSCA" work while Congress and stakeholders work on developing a "new TSCA." The "Safe Chemicals Act of 2010" was introduced in the Senate last month, with a companion bill introduced in the House. While it's unclear when or even if some form of the bills will become law, EPA is determined to aggressively use the authority it believes it has in the old Toxic Substances Control Act.

One activity has been the introduction of "action plans" on specific chemicals. The latest two plans have now been sent to the White House Office of Management & Budget for review. The two plans - one for nonylphenol and its ethoxylates (a common laundry detergent chemical) and the other for hexabromocyclododecane (a brominated flame retardant) - were sent to OMB this week. It's unclear how long OMB will take to review them, but EPA has said it plans to issue them shortly.

The nonylphenol plan could be particularly contentious as industry may have to do substantial testing and yet still have to phase-out the chemical for use. A trade association representing textile rental services has already proposed a phaseout by 2016 in lieu of an EPA test rule. The hexabromocyclododecane is important because it joins other brominated flame retardants on the potential chopping block.

So expect these two action plans to get through OMB quickly and be released as early as the end of this month. Meanwhile, EPA is also working on action plans for benzidine dyes and pigments, diisocyantes and siloxanes. These are in addition to the actions plans already released for bisphenol A; multiple phthalates; certain perfluorinated chemicals; penta, octa, and decabromodiphenyl ethers; and short-chain chlorinated paraffins.

So EPA pushes forward while Congress decides whether it can act on the bills already introduced.

Two Ways to Reset Your Inventory - REACH vs Safe Chemicals Act

As various stakeholders hold their stakes, i.e., hold out as long as they can for their positions on either end of the political and regulatory spectrum, the discussions go on as to whether the new Safe Chemicals Act (SCA) bill is "just like REACH." One aspect that we can look at is how each of these regulations, the one already in force in Europe and the one proposed and possibly not even passing in the US, handles the problem of tens of thousands of existing chemicals grandfathered onto an Inventory.

First it was TSCA, and not having the faintest idea how to handle about 63,000 chemicals already in commerce, the law simply put them on a list and said "we'll get to them in time." Then came the Dangerous Substances Directive in Europe, and faced with the same dilemma, they created the EINECS Inventory.

And now there is REACH. To deal with the existing chemicals (and the "new" ones added since then), REACH created the "pre-registration" of chemicals. Only chemicals that companies pre-registered could be considered "existing" for purposes of gaining some phase-in time to produce the required data sets. Anything not pre-registered becomes a "new" chemical and must have the data set provided before being placed on the market (and if you were on the market already and didn't pre-register, then you're in violation and must stop production until you provide the data). When all is said and done only those chemicals with complete data sets will gain the status of "existing."

So what does the SCA do about those existing chemicals? Well, they make you provide a "declaration" that you are manufacturing or processing specific chemicals. And you have one year to do so (with updates every three years or immediately when obtaining new toxicity information). Sounds a lot like the REACH pre-registration, doesn't it? Well, almost. Under REACH you only have to provide some basic information like name and ID of the chemical, where and who you are, and how much you manufacture or import. But the SCA would go much further. Besides that information you would also have to provide all the available health and safety data on the chemical and use patterns. And you have to certify that the information is not only true, but reliable. That's a lot of work up front.

But it actually is good in a way. The data to be provided isn't going to be a full data set (as defined by EPA). It's going to be whatever you have in your file drawer and/or have readily available. There is an incentive to do this up front because then you can show that your chemical is one that shouldn't be of much concern, which means EPA won't be likely to put it on their priority list of 300 chemicals. At least not the first version. Of course, if your chemical has some special concerns then the data may cause the chemical to rise to the top of the priority list. Which is exactly what the priority list should be all about.