Senate Committee Approves Gina McCarthy Nomination for EPA Administrator

The Senate Environment and Public Works Committee approved Gina McCarthy's nomination to be the next EPA Administrator. After Republicans boycotted an attempted committee vote last week, eight Republicans showed up today. All eight voted against McCarthy, while all 10 Democrats voted for her. Even Democratic Senator Frank Lautenberg left his sick-bed to make the vote.

McCarthy's nomination now moves to the full Senate where she is expected to be confirmed despite Republican gamesmanship. Republican Senator David Vitter has indicated he will vote for her confirmation. The one remaining political game-playing is by Republican Senator Roy Blunt of Missouri who says he will maintain a hold on her nomination until EPA sets a schedule for release of an environmental impact statement for a site in Missouri. Of course, EPA can't release the EIS until they have an Administrator to sign it. The Administrator-nominee that Blunt is holding up.

McCarthy is the current EPA Assistant Administrator for Air and Radiation. Under her watch the EPA has issued significant air pollution regulations, which is the main reason why Republicans are holding up her nomination.

GAO Issues Report on EPA's Effort to Enhance TSCA Chemical Regulation

At the request of some members of Congress, the Government Accountability Office (GAO) has conducted another study on how EPA "has increased efforts to assess and control chemicals." GAO concludes that progress has been made but EPA could "strengthen its approach."

From the highlights:

GAO was asked to evaluate EPA’s efforts to strengthen its management of chemicals. This report determines the extent to which (1) EPA has made progress implementing its new approach and (2) EPA’s new approach positions it to achieve its goal of ensuring the safety of chemicals. GAO examined agency documents and TSCA rulemaking and interviewed agency officials and stakeholders from industry and environmental organizations.

The starting point was the 2009 announcement by EPA of TSCA reform principles. Because TSCA reform bills, most notably those introduced by Senator Frank Lautenberg, have not resulted in any update to the 1976 law, EPA has been working hard to maximize its current authority under TSCA. The GAO assessed its progress. The results are mixed, at best.

The results of EPA’s data collection activities, in most cases, have yet to be realized, and it may take several years before EPA obtains much of the data it is seeking.

In fact, the GAO summarizes:

Of the 83 chemicals EPA has prioritized for risk assessment, it initiated 7 assessments in 2012 and plans to start 18 additional assessments in 2013 and 2014. However, it may take several years to complete these initial risk assessments and, at the agency’s current pace, over a decade to complete all 83, especially as EPA does not have the toxicity and exposure data needed for 58 of the 83 chemicals prioritized for risk assessment.

While GAO recommends that EPA "develop strategies that address challenges impeding its ability to ensure chemical safety," the impeding challenges are well known - Congress simply won't take the steps necessary to modernize the nearly four-decade-old chemical law.

In a letter responding to the draft GAO report, Acting Assistant Administrator James Jones noted that GAO has several times before called for Congress to update the antiquated TSCA law:

It is EPA's position that, absent such statutory changes, the Agency will not be able to successfully meet the goal of ensuring chemical safety now and into the future.

With no realistic update to the law in sight, and constant attacks on EPA's budget, any blame for lack of chemical safety should be placed where it belongs - on Congress.

The full GAO report can be downloaded here.

Will current efforts to reform the TSCA chemical control law actually roll back progress?

Just last week Senator Frank Lautenberg (D-NJ) reintroduced his Safe Chemicals Act and there was hope for some sort of TSCA reform. Senator David Vitter (R-LA) is expected to introduce an alternative, chemical-industry-backed, counter-bill in the next few weeks. But Richard Denison, senior scientist at the Environmental Defense Fund (EDF), believes that Senator Vitter's bill will actually roll back even the current limited authority of EPA to regulate chemicals under TSCA.

While some of this is speculation since very few people have seen Vitter's bill - he seems to have consulted primarily with only the one major chemical trade association and cut out other chemical groups, health advocates, environmentalists, and the public - Denison gleans from public statements several areas that could result in dramatic weakening of the current TSCA.

For example, rather than making it easier for EPA to request testing on chemicals with little data but apparent concern, Vitter's bill may actually make it harder for EPA to do so. According to Denison, the bill could also restrict the abilities of states to step in when the federal authorities fail, or are incapable, of taking action. There has also been widespread questioning of the risk standard proposed in the Lautenberg bill, a standard that Denison points out has been endorsed by major medical groups as necessary to protect vulnerable subpopulations, including developing fetuses and infants. The Vitter bill would also apparently make no changes to the current PMN process for new chemicals, a process that requires virtually no health and safety data be submitted in most cases.

So despite some movement on TSCA reform - the introduction of one and probably two new bills - it seems we're headed for another stalemate in which the goal is to stop TSCA reform. Again.

Denison's blog article can be found on the EDF website.

Lautenberg to push TSCA reform bill

The Philadelphia Inquirer is reporting that Senator Frank Lautenberg will try once again try to reform the nearly four decade old Toxic Substances Control Act. According to an article by Sandy Bauers published online, Lautenberg plans to introduce his newest version of the Safe Chemicals Act on Wednesday.

The Democratic Senator from New Jersey has been trying since 2005 to get passage of a TSCA reform bill. The most recent attempt in 2012 made it out of Committee on a partisan vote, only to die from lack of interest in the full Senate. Recently Republican Senator David Vitter has indicated that he was working on an alternative, chemical industry-backed, bill.

The Bauers article can be read here.

The announcement is now on Senator Lautenberg's site.

Full text of the 2013 bill is here.

A summary is here.

Safer Chemicals Healthy Families, an NGO, says the bill "much-needed legislation would protect Americans from unsafe chemicals."

Another NGO, the Environmental Working Group, also favors the Lautenberg bill.

A trade association, the American Chemistry Council, thanked Senator Lautenberg for his commitment, but indicated it was encouraged by "efforts in the Senate led by Senator David Vitter (R-LA) to develop a new proposal." Senator Vitter is expected by some to introduce a competing "industry" bill later in the month.

Another trade association, the Society of Chemical Manufacturers and Affiliates (SOCMA) issued a press release today that did not mention Lautenberg's bill specifically, but called for a more piecemeal approach through "bipartisan cooperation."

According to the summary from Senator Lautenberg's office, the bill is identical to the one passed out of Committee last summer. That bill was never taken up for debate during the limited remaining legislative calendar during the election period. By reintroducing the bill Senator Lautenberg hopes to rejuvenate the discussion of much needed TSCA reform. Given the current political climate it is likely that no action will be taken until Senator Vitter's competing bill is offered.

Senator Lautenberg will not seek reelection

As I've previously indicated would be likely, Senator Frank Lautenberg of New Jersey has decided not to seek reelection in 2014. Lautenberg, who will be 90 years old during the campaign, will let younger candidates run for his seat.

Corey Booker, the popular Mayor of Newark, NJ, has already announced that he would run for Lautenberg's seat. Representative Frank Pallone had also privately indicated that he would likely run if Lautenberg chose to step down, though he has not yet made it official.

Lautenberg Steps Down as Chair of Toxic Chemicals Subcommittee

Senator Frank Lautenberg of New Jersey, long a champion of efforts to reform the Toxic Substances Control Act (TSCA), will no longer chair the Superfund, Toxics, and Environmental Health Subcommittee of the Senate Environment and Public Works Committee. Lautenberg, of course, has introduced several versions of a Safe Chemicals Act over previous Congresses.

Replacing Lautenberg as chair will be Senator Tom Udall of New Mexico. Barbara Boxer of California chairs the full EPW Committee. David Vitter of Louisiana had already replaced Senator Inhofe of Oklahoma as ranking minority member of the committee. The main reason given for the change to Udall on the toxics subcommittee is that Lautenberg has taken up the chair for the Financial Services subcommittee of the Senate Appropriations Committee and simply will not have time. Lautenberg is up for reelection in 2014, though at 90 years old it seems unlikely he will run.

Meanwhile, Lautenberg expects to continue his push for TSCA reform during the current Congress, and with Vitter apparently working with industry to craft a counter-bill, it is possible that we'll see some sort of TSCA reform bill at least reach debate.

EU Commission Publishes REACH Review

The EU Commission has fulfilled its obligation to review the REACH program. It published its REACH review on February 5, 2013. The 15-page document concluded:

"that REACH functions well and delivers on all objectives that at present can be assessed. Some needs for adjustments have been identified, but balanced against the interest of ensuring legislative stability and predictability, the Commission will not propose any changes to the enacting terms of REACH."

They did, however, determine that there is a need to reassess the impact of REACH on small and medium sized entities (SMEs), which because of their relative low benefit compared to the high costs of compliance the Commission felt have still been unduly impacted despite reduced fees and testing obligations.

A summary of the report can be read here.

The prepublication version of the report can be downloaded here as a PDF.

26 States to Consider Toxic Chemicals Legislation in 2013

As TSCA reform enters another year without any resolution, at least 26 states are considering action to enhance protection of public health and the environment from exposure to chemicals. According to the advocacy coalition, Safer States:

In 2013, we expect at least 26 states to consider legislation and policy changes that will:

• Restrict or label the use of bisphenol A (BPA) in receipts, children's products and food packaging.
• Require removal of certain toxic flame retardants from children's products, home furniture or building materials.
• Change disclosure rules so that concerned consumers will have a way to identify toxic chemicals in products.
• Encourage manufacturers to remove identified toxic chemicals in favor of safer alternatives.
• Ban cadmium, a dangerous, persistent metal that is often found in inexpensive children's jewelry.
• Ban formaldehyde from cosmetics and children's products.
• Promote green cleaning products in schools.

Safer States states that "We believe families, communities, and the environment should be protected from the devastating impacts of our society’s heavy use of chemicals. We believe that new state and national chemical policies will contribute to the formation of a cleaner, greener economy." They have also been highly critical of industry, reporting on what it sees as misplaced priorities "inside the toxic chemical industry."

So state efforts continue. At the federal level, Democratic Senator Frank Lautenberg has indicated that he will reintroduce his Safer Chemicals Act. The SCA was passed out of committee last year but never came to the Senate floor for debate or vote. The committee-passed version includes substantial changes from the original bill, including many adjustments to take into consideration concerns expressed by industry. Still, industry widely denounced the bill as unworkable, a position that Richard Denison of the Environmental Defense Fund and Andy Igrejas of Safer Chemicals Healthy Families have asserted is disingenuous at best. Industry is, however, reportedly working with Republican Senator David Vitter on what is effectively an industry-sponsored bill. It is unclear when or if Vitter's bill will be introduced, but any such bill would at least provide a counter-position to that of Lautenberg and offer opportunity for substantive debate.

EPA Releases Draft Risk Assessments Under Existing Chemicals Work Plan

From the USEPA Press Release:


"EPA today released for public comment draft risk assessments, for particular uses, on five chemicals found in common household products. The draft risk assessments were developed as part of the agency’s Toxic Substances Control Act (TSCA) Work Plan, which identified common chemicals for review over the coming years to assess any impacts on people’s health and the environment. Following public comment, the agency will seek an independent, scientific peer review of the assessments before beginning to finalize them in the fall of 2013." 

The chemicals and specific use for which risk assessments were released are:

• methylene chloride or dichloromethane (DCM) and n-methylpyrrolidone (NMP) in paint stripper products; 
• trichloroethylene (TCE) as a degreaser and a spray-on protective coating; 
• antimony trioxide (ATO) as a synergist in halogenated flame retardants; and 
• 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8,-hexamethylcyclopenta-[γ]-2-benzopyran (HHCB) as a fragrance ingredient in commercial and consumer products.

A brief summary of the risk assessments can be downloaded in PDF format.

More information can be read on the EPA website.

EDF Questions Independence of TERA Kids Chemical Safety Site

Recently, the Toxicology Excellence in Risk Assessment (TERA) non-profit group teamed up with the American Chemistry Council (ACC) and others to initiate a website called Kids + Chemical Safety. The site purports to provide "up-to-date health information on chemical hazards and chemical safe use in children." Its tagline is "+ Balanced, scientifically accurate chemical health information." Scientist Richard Denison of the Environmental Defense Fund (EDF), however, questions TERA's independence.

After pointing out that being a non-profit "does not conflate to, or somehow confer the right to claim, objectivity or independence" (noting that the NRA and EDF itself are non-profits but have a clear perspective on the issues they address), Denison goes on to suggest that the site is not what it seems.

Denison categorizes the topics of the website into two groups: 1) those that are "largely outside of the vested interests of the site's most prominent sponsor" (i.e., ACC), and 2) those that "fall squarely within those vested interests." Denison argues that those two categories "are treated very differently on the website." I'll leave it to you to read his arguments and determine whether his case is valid.

The issue that the website and Denison's counterpoint raises is really about how the public gets its information on the health and safety of products on the market. Ideally all products would have been proven safe to the extent such a proof is possible, with the information from the multiple studies involved synthesized and presented in language both trustworthy and easy to understand by the general public. But this is rarely the case.

Part of this is because science is messy. It doesn't always give us an easy and definitive answer. More comprehensive pre-market testing would help, but in many cases there is no way to prove a negative, i.e., that actual use might result in some unforeseen hazard. We're probably stuck with that uncertainty, though we clearly can do more to reduce it. 

But part of the communication problem is also because the public has learned to distrust the information that is being presented to it. Independent sites could be a good way to build trust, as scientifically accurate information is distilled into something we can all understand. That requires true independence. Unfortunately, too many "grassroots" public information campaigns have turned out to be "astroturf," i.e., they may look real from a distance but are revealed to be fake upon closer inspection. It is small wonder that the public has developed a cynical attitude toward the information it receives.

Clearly Richard Denison feels the new TERA site, in part supported by the chemical industry, does not adequately achieve the independence needed to inspire the public's confidence.

Again, please read Denison's argument before deciding if he makes his case. But also think about how data can be presented in a way that can be both trustworthy and useful. After all, the goal is to inform the public - first, to ensure reasonable protection of their health and safety, and second, to avoid the irrational fear of the unknown caused by lack of reliable and dependable information.

Lisa Jackson Resigns as EPA Administrator

As comes as no surprise to anyone, EPA Administrator Lisa Jackson has announced that she will resign her post. While not giving an exact date, it is widely expected to be shortly after President Obama is sworn in for his second term and as late as his State of the Union address. Jackson did not indicate any particular position she had lined up but likely there are several options both in Washington DC and in her home state of New Jersey.

A successor has not yet been named, though current deputy administrator Robert Perciasepe will serve as acting administrator until a new administrator is nominated by the President and confirmed by the Senate. Perciasepe has been with the EPA off-and-on for about 20 years in various capacities. After leaving EPA in 2003 to serve as COO for the National Audubon Society, he returned at the request of Obama and Jackson in 2009.

Jackson's announcement is the most recent in the fire-sale of Cabinet-level resignations that often follows the reelection of a President. Other Cabinet officials who have announced they are leaving, or have at least unofficially signaled they would soon leave, include Secretary of State Hillary Clinton, Treasury Secretary Geithner, and others. Senator John Kerry has already been nominated by President Obama to be head of the State Department. Kerry has indicated, as has Obama, that climate change will be a relevant issue to be pursued in Obama's second term. This may impact the choice of a replacement for Jackson. While attempts to pass climate change legislation early in Obama's first term, including a bill co-authored by Kerry, as well as regulatory action by EPA, were met by Republican obstruction, look for the new EPA Administrator to have significant influence on this topic.

EPA and NSF Offer Grants for Green Chemistry, Life Cycle Research

The USEPA and the National Science Foundation (NSF) announced on December 20, 2012 that they would offer grants for up to ten different research projects - totaling $32 million. The grants will be divided between two areas of research.

For Networks for Characterizing Chemical Life Cycle research, interested parties can get more information here.

For Networks for Sustainable Molecular Design and Syntheses, interested parties can get more information here.

Requests for applications for the grants are due by March 18, 2013.

ECHA Lists 54 Substances of Very High Concern

The European Chemicals Agency (ECHA) plans to add another set of substances of very high concern (SVHC) to the candidate list under the REACH Regulation. The 54 new substances brings the total on the candidate list to 138. Most of the substances listed are CMRs, i.e., carcinogenic, mutagenic or reproductive toxicants, or PBTs, i.e., persistent, bioaccumulative and toxic. Three of the new substances are listed because they exhibit "equivalent concern," a more nebulous characteristic that covers any toxicity or other concern that does not fit neatly into one of the other categories, e.g., endocrine disruption, or in this case, strong respiratory sensitizers.

All of the substances on the candidate list are evaluated for inclusion on the Annex XIV Authorization list.

The full list of candidate list substances can be found in the table here.

ECHA Cancels REACH Registrations Because Companies Misrepresented Themselves

The European Chemicals Agency (ECHA) in Helsinki, Finland has revoked "a number of" REACH registrations because the registrants misrepresented their size. Size is important because the registration fee is dependent on the size of the entity submitting the registration. Small and Medium Sized Enterprises (SMEs) are allowed a significant discount to avoid disproportionate costs of registration compared to market value. According to ECHA, this "ensures equal and fair treatment of registrants." Companies declare their size when registering the fee is assigned automatically when the registrant makes their electronic dossier submission. Once submitted registration dossiers pass a completeness check, which includes payment of the fee, the registrant is given a registration. This generally occurs within three weeks of submission.

In their more comprehensive review since the November 2010 submission deadline, ECHA has determined that some companies inappropriately claimed they were SMEs when they did not, in fact, qualify for that designation or the reduced fee. Those companies that cannot document their SME status or pay the full size entity fee are considered to have failed the completeness check. In those cases ECHA has chosen to revoke the registration, which means the companies can no longer legally manufacture or import the chemical substance in question.

More details on the revocation can be found on the ECHA website.