EPA Will Start Reviewing Confidentiality Claims for TSCA Chemicals

The USEPA has announced in a Federal Register notice that it initiate "a general practice of reviewing confidentiality claims for chemical identities in health and safety studies, and in data from health and safety studies, submitted under TSCA."

The policy will become effective August 25, 2010 and will include both newly submitted claims and existing claims. The policy takes advantage of Section 14(b) of TSCA, in which the data in health and safety studies is not supposed to be held confidential. If EPA decides to make these studies public they would still "not disclose processes used in the manufacturing or processing of a chemical substance or mixture or, in the case of a mixture, the release of data disclosing the portion of the mixture comprised by any of the chemical substances in the mixture." The problem is that sometimes the chemical identity has contained confidential process information. But where a chemical identity does not explicitly contain process information or reveal portions of a mixture, "EPA expects to find that the information would clearly not be entitled to confidential treatment."

This is yet another step EPA is taking to improve the transparency of chemical information. Earlier EPA determined that some information previously held confidential would no longer be, and they also put the public portion of the TSCA Inventory on the internet for free availability for all (previously you had to purchase access through private vendors).

If Corexit is so bad, why is BP using it as a dispersant in the Deepwater Horizon spill in the Gulf

Okay, I suppose "spill" isn't the right word, given that the well head continues to gush oil. Maybe leak. I've heard some say "volcano." In any case, they first have to stop the oil from flowing. But while crews are working on what I think is now Plan F or G (or perhaps U or V), other crews are dumping hundreds of thousands of gallons of dispersant into the Gulf. Word is that they will reach a million gallons shortly, with much of it being sprayed on the surface and at least 100,000 gallons injected a mile deep underwater at the well head.

But the EPA and NGOs are concerned that the dispersant of choice, Corexit, is both less effective and more toxic to aquatic life than alternatives. So why choose that one instead of something else?

In large part it is because they have lots of it on hand. And they don't have lots of whatever might be used to replace it. Even White House energy advisor, and former EPA Administrator, Carol Browner has acknowledged that "there are not as many being manufactured as people thought in the quantities" needed.

Which raises two questions. First, shouldn't this remind us that there are significant dangers to an oil-based economy, both economically and environmentally (not to mention from a national security standpoint)? And second, shouldn't companies and agencies ensure that they have on hand adequate supplies of emergency response gear and chemicals? As oil exploration goes into deeper and deeper waters the risks of catastrophic failures such as the Deepwater Horizon are likely to become more frequent.

And the dispersants don't actually get rid of the oil, just disperse it. Which means make it into smaller droplets that in theory can either degrade quicker or dilute out in a wider area. Unfortunately, these droplets actually make the oil more bioavailable to aquatic organisms. Not to mention the impact on the fishing, shellfishing, beaching, and tourist industries of the Gulf region, in particular Louisiana.

And did I mention that hurricane season is just beginning?

Green chemistry gains another proponent in California

Green chemistry has been a hot topic in the last few years, with California, the EPA, the EU, and others pushing to encourage safer, more health and environmentally friendly, and sustainable chemicals. Toward this end, last week saw the formal opening of the Green Products Innovation Institute (GPII) in San Francisco, a non-profit organization founded to promote the cradle-to-cradle (C2C) concept.

The idea of C2C was first developed by architect William McDonough and chemist Michael Braungart. The process looks at the entire life cycle of a product, from its initial extraction from virgin ore to its disposal, or actually, to its reuse or recycling. From their web site, www.gpinnovation.org:

The Green Products Innovation Institute (GPII) is a non-profit organization created to bring about a large scale transformation in the way we make the things we make.

Rather than focusing on how industry can become "less bad," the GPII is set up to be a resource for those who aspire to do "more good". We promote an innovation-oriented model for eliminating toxic chemicals and other negative environmental impacts. The GPII prescribes a set of design principles, based on the laws of nature, to help businesses create products that are safe for people and the environment. This rethinking of how we design, manufacture, use and reuse materials will spur a new era of innovation, simultaneously driving economic, ecological and social prosperity.

GPII plans to work with academia, NGOs, government, and industry to establish a product rating system. Products meeting the criteria will receive a C2C certification mark.

While the founders hope to expand internationally, locating the headquarters in California is no accident as the state has been working to implement a green chemistry philosophy. Indeed, Governor Schwarzenegger attended the opening and reiterated GPII's mantra that the "time is now for us to go beyond simply being 'less bad' and to lead the world in the invention and innovation of 'more good,' which he sees as a way to a "prosperous Cradle-to-Cradle economy."

Initially, funding of GPII is from private donations from organizations and individuals, but once established they expect to be funded through training and product registration fees.

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.

EPA Expands their Envirofacts Chemical Facilities Database

In keeping with its new policy of transparency and providing access to the public of chemical information, the USEPA has expanded their Envirofacts databases. Envirofacts provides access to a variety of databases on topics ranging from the UV Index to hazardous waste facilities to water discharge permitting to the toxic release inventory (TRI).

Now EPA has added more than 6,300 chemicals and 3,800 chemical facilities regulated under the Toxic Substances Control Act (TSCA). This follows on the heals of EPAs April proposal to add 16 chemicals to the TRI, which are chemicals that facilities must report periodically because of their highly toxic properties.

Also in April EPA made the ToxRefDB chemicals database freely accessible on the web, and it also made the public portion of the TSCA inventory available for free to everyone for the first time. They also have proposed modifications to the rules that allow companies to claim as confidential business information, which EPA feels industry has abused.

So EPA has taken unprecedented steps over the past several months to make data available to the public. Will it make much difference? Well, most of the public will not really care, and many of those who care won't really know how to interpret or use the information even if they can find it. But public accessibility is the first step in giving the public a chance to understand more. Most certainly there will public advocacy groups who will use the easier access to information to both identify problem chemicals and to educate the public.

So while having more data may create opportunities for misunderstanding by those who don't have the background to understand the context, in general I think more data accessibility is a good thing. Once the public understands how much actually is known about chemicals, especially as REACH and TSCA reform put more data on the net, it is likely that the public will gain more confidence that regulation is keeping them safe. Right now the perception is that we are surrounded by dangerous chemicals that are harming our health. With more actual data available, undoubtably we will find that isn't the case. But at the same time we will be better able to identify those cases where the risks are not considered acceptable.

Book Review – The Climate Crisis by David Archer and Stefan Rahmstorf (2010)

The IPCC AR4 report too technical for you? Want to learn about the climate change? Then this is a good book for you. “The Climate Crisis: An Introductory Guide to Climate Change” by climatologists David Archer and Stefan Rahmstorf was published this year and does a decent job of explaining the status of climate science to non-scientists.

That doesn’t mean the book isn’t technical. It is chock full of color graphics, charts, tables, and photographs documenting every aspect of climate science. But the authors work hard to present the information in language that educated non-scientists and scientists and professionals in other fields can more readily understand. Overall they accomplish this goal, though I do think that parts of the book are still technical enough to confuse your “average Joe.” Conversely, I don’t think they explain some of the charts well enough – there is a tendency to have a narrative and reference a chart or graph, but then not explain the graph in detail. This is intentional as the book is designed to communicate the information on a level that non-climatologists can understand, but I did find myself wanting to drill into the figures more than was enabled.

Still, these are minor quibbles and I find the book to be a very useful addition to the reading list of anyone interested in the topic of global warming or climate change. The authors are both practicing climatologists and professors of climate science. Rahmstorf was one of the lead authors in the most recent IPCC Fourth Assessment Report (called AR4). Both contribute to the RealClimate.org blog on the topic.

The book itself focuses on the state of the science and looks at what evidence of climate change we have already seen, what is happening with snow and ice in various parts of the world, how the oceans are changing, and how climate is measured. They also have chapters on what we might see in the future with respect to climate change, impacts of those changes, and how we can avoid the worst of it. They briefly touch on climate policy in the last chapter, but they focus on the need for action, the global nature of the cooperation required, and the differences between developed and developing nations, rather than discussing any specific policy solution.

I definitely recommend the book. Readers will find it both informative and enlightening.

National Academies of Sciences to Release Three Climate Choices Reports

The US National Academies of Sciences is planning to release on May 19, 2010 a series of three reports under the auspices of the America's Climate Choices program.

The three reports are:

Advancing the Science of Climate Change - which focuses on the scientific evidence regarding human-induced climate change and future research needs,

Limiting the Magnitude of Future Climate Change - which assesses options for limiting greenhouse gas emissions and taking other actions to reduce the magnitude of climate change, and

Adapting to the Impacts of Climate Change - which focuses on options to improving the nation's capacity to adapt to climate change impacts.

A public briefing will be held at the National Academy of Sciences building, 2110 C St., NW, Washington DC beginning at 10 am EDT. The public is invited to the briefing and should RSVP to attend at www.americasclimatechoices.org. If you can't attend in person you can also watch a live video webcast and submit questions at www.national-academies.org.

Ralph J. Cicerone, president of the National Academy of Sciences, will deliver opening remarks, and members of the panels that authored the reports will discuss the reports findings and take questions.

NAS' America's Climate Choices also includes two additional reports that will be released later this year: one entitled "Informing an Effective Response to Climate Change" will examine how best to provide decision makers with information on climate change, while the other will be "an overarching report that looks across the topics of the four panel reports to offer an integrated view of the challenges and opportunities in the nation's efforts to confront climate change."

First REACH Deadline Approaching Fast - Time to Panic?

The REACH chemical control law in Europe has been in force for a couple of years now, but November 30, 2010 is the first big deadline for companies to register their chemicals. To do that they have to provide extensive dossiers of health and safety data. No data, no registration, no market.

Since this is the first deadline and it is for larger volume chemicals (the three deadlines are spaced out, with lower tonnages not due until as late as 2018), there has been a lot of work to do...and a lot of confusion about how to do it. Even as companies and consortia are working hard to finish up their registration packages, ECHA (the chemicals agency in Helsinki) is still revising and creating guidance documents and software. And all this has many companies on edge.

But there are some reasons to relax. Okay, not relax, but at least not get too anxious.

While ECHA has 3 weeks to run the submitted dossiers through an automated completeness check, if companies don't submit until October or November (assuming they still meet the November 30 deadline), that window actually expands to 3 months. If it is not completely acceptable, companies will have up to 4 more months to fix it and provide corrected documents. In practice what this could mean is that there will be a lot of companies at the last minute more worried about checking the right boxes in the electronic form to ensure it passes the automated completeness check then getting the assessments right. If they can get past that, then they are home free to continue producing or importing the chemicals until ECHA or a member state targets a particular chemical for further review.

There is also a right to appeal some decisions to ensure integrity of supply chains.

So the bottom line is that companies have a lot of work to get down between now and the fall, but then can relax and wait for further assessment, if any, from ECHA, all while continuing to market their chemicals.

Just make sure your dossier passes the completeness check.

Climate Crock of the Week

I normally don't do promos, but I wanted to make a plug for a particular YouTube channel that has been very useful in educating the public on the status of climate change.

Peter Sinclair produces the Climate Denial Crock of the Week video series. A long time advocate of environmental awareness and energy alternatives, Sinclair is an award winning graphic artist, illustrator, and animator. His syndicated cartoons have appeared worldwide, and his work has been profiled in numerous publications, including the New York Times. Greenman Studios is run from his home in Midland, MI.

To obtain funding to continue to produce the videos at a high quality, Crock of the Week has submitted for funding at the Brighter Planet's Project Fund. The Brighter Planet Project Fund seeks to foster local leadership and seed worthy community projects that will help people fight or adapt to climate change. You can read more about the Brighter Planet Project Fund, and vote for the Climate Denial Crock of the Week video series here.

You can visit Peter Sinclair's web page here.

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.

Obama Sends Energy Secretary Chu to Monitor BP's Oil Spill Response

In continuing his "all-hands-on-deck" response to BP's Deepwater Horizon oil spill, which is quickly reaching the spill record long held by ExxonMobil with it's Exxon Valdez accident, President Obama is sending Energy Secretary Chu to the Gulf coast.

Along with Chu will be a team of "top administration officials and government scientists" who will swarm on BP's command facility in Houston. The move follows another meeting of Obama's cabinet and senior staff to get an update on the efforts to stem the flow of oil from 5,000 feet down off the coast of Louisiana.

The hope is that somehow they can figure out how to "contain the spread, mitigate the environmental impact and provide assistance to affected states, including individuals, businesses, and communities."

But Chu isn't the only top official to be involved. EPA Administrator Jackson has made several visits to the Gulf region to oversee efforts to mitigate the environmental and human health impact of the spill. Interior Secretary Ken Salazar has been there and yesterday dispatched Director of the Bureau of Land Management Robert Abbey to the Gulf Coast to support ongoing response efforts. Other federal level resources responding include the Navy, the Coast Guard, NOAA, the Fish & Wildlife Service, the US Geological Survey, and even the Department of Agriculture's Natural Resource Conservation Service.

In addition, "to deal more generally with the harms created by oil spills, the President has requested that legislation be sent to Congress to toughen and update the law surrounding caps on damages."

More information and daily updates on the response can be found on the official Deepwater Horizon response site.

Companies Challenge ECHA Candidate Listings

As I've reported in the past, the European Chemicals Agency (ECHA) has been adding chemicals to "candidate lists" designating them as "substances of very high concern" (SVHC). Well now several companies are starting to push back on these listings.

The first instance was when lawyers challenged the listing of acrylamide. The substance was initially dropped from the published list, though it was added back on within short period. Now we see that several companies have gotten together to legally challenge the inclusion of four more substances to the lists, specifically, "pitch, coal tar, high temperature" (PCTHT); anthracene oil; "anthracene oil, anthracene low"; and "anthracene oil, anthracene paste." Actually the challenges were made back in February for the list issued in January, but only now have the challenges been made public. The companies feel the decision to list is faulty and based not only on errors in the hazard assessment but also on a misinterpretation of the law. In fact, they assert that there is no legal basis in REACH for the listing.

We'll see how the challenge comes out. But it is no surprise that companies are starting to push back against candidate listing. Once a chemical is designated a SVHC it then gets on a fast track for being pushed out of the market. Candidate list chemicals are eligible for the Authorization phase of REACH, which means they will be banned unless the manufacturer or importer of the chemical applies for authorization to continue using it. And if an authorization is granted, it will be time limited (likely less than 5 years) and also limited to specific uses that can be controlled. The company getting the authorization also is required to come up with a plan to replace the authorized chemical with a safer alternative, again on a very restrictive time frame.

This case is a reminder that while companies are focused on preparing their data packages for the first registration deadline on November 30, 2010, other parts of the REACH regulation are also moving forward on separate tracks. It is wise for companies to be aware of all of the facets of REACH, not just the registration dossier.