TSCA Chemical Reform Hearing in the US Senate Thursday February 3

TSCA reform may be dormant, but apparently not completely dead.  Since there appears to be little chance of the Republican-led House to initiate action this term, the Senate has decided to try to jump start the process again.  With this in mind, the Senate Subcommittee on Superfund, Toxics and Environmental Health will hold a hearing entitled "Assessing the Effectiveness of US Chemical Safety Laws" this Thursday, February 3, 2011. 

The subcommittee is part of the Senate Committee on Environment and Public Works chaired by Barbara Boxer.  Frank Lautenberg of New Jersey chairs the subcommittee, and as you probably remember he has been the one to introduce the various "Kid Safe" bills in recent years, including last year's Safe Chemicals Act.  Joining Lautenberg is ranking member James Inhofe, who while historically not prone to supporting environmental legislation, has indicated he is committed to work with Lautenberg to come up with a TSCA reform bill that protects human health and the environment while also not unduly inhibiting industry growth.

Witnesses at the hearing, some of whom have become familiar faces at these events, are expected to be:

Panel 1

The Honorable Steve Owens Assistant Administrator, Office of Prevention, Pesticides and Toxic Substances Environmental Protection Agency

Panel 2

Ms. Kelly M. Semrau Senior Vice President for Global Corporate Affairs, Communication, and Sustainability, SC Johnson

Mr. Steve Goldberg Vice President and Associate General Counsel BASF

Ms. Frances Beinecke President Natural Resources Defense Council

Mr. Cal Dooley President American Chemistry Council

Dean Lynn Goldman, MD, MPH Dean George Washington University School of Public Health and Health Services

The Subcommittee hearing page will include copies of testimony once given. It will begin at 10:00 am EST in the EPW Hearing Room 406 Dirksen Senate Office Building in Washington DC.  As of this writing no indication of whether the hearing will be simulcast or not, but generally this is the case.

Pesticide Trade Association Offers Their Insight Into Recent NGO Endangered Species Act Lawsuit

About 10 days ago I reported on a law suit filed by two NGOs in an attempt to force EPA to "consult" with the Fish & Wildlife Service and the National Marine Fisheries Service on pesticide issues as required by the Endangered Species Act.  Now the major crop protection chemical (i.e., pesticide) trade association has weighed in on the suit.

The trade association, CropLife America, which "represents the developers, manufacturers, formulators and distributors of plant science solutions for agriculture and pest management in the United States," offered the following on their web site:

“The Endangered Species Act (ESA) is an important legislative vehicle which helps facilitate the conservation of endangered plants and animals, yet the litigation filed by CBD and PANNA reflects the much larger issue: real ESA reform is required to protect endangered species,” said Jay Vroom, president and CEO of CLA. “However, litigation does not help to improve a system which can only be fixed through sound policy and legislation.”

CropLife America believes that, while the lawsuit "alleges that EPA has failed to consult with the...Services to ensure that crop protection products do not jeopardize endangered species," the NGOs "overlook the numerous benefits of modern agriculture, its rigorous regulatory oversight and proven role in protecting America’s wildlife."  In other words, think of all the good that pesticides do for society.  But there is more, obviously, to the story as CropLife and the NGOs differ dramatically on the value of pesticides.  CropLife believes that they allow for greater crop growth, which means greater and more efficient food production.  The NGOs believe that pesticides epitomize the problem of reliance on monoculture, which requires heavy chemical usage to combat the resulting pest species that would otherwise not be able to gain a foothold.


Both groups would agree that a better consultation process is needed.  The NGOs think that having EPA make what are essentially summary decisions by themselves is a conflict of interest since EPA also garners fees for registering pesticides.  CropLife believes that bringing in the Services creates a huge stranglehold on innovation and the ability to bring new, and presumably safer, products onto the market.  This argument has been going on for years and perhaps is the real reason behind the NGO law suit - to get a case that can cause there to be decisions made on how to proceed.  Clearly a more effective procedure, both from an efficiency standpoint and from a human health and the environment standpoint, is needed.

Update on Korea REACH Chemical Control Law

Two weeks ago I reported that South Korea was expected to release a REACH-like chemical chemical control law.  Now the Korean Ministry of the Environment (MOE) has issued a news release indicating that MOE, in cooperation with six other ministries, has "set a master plan for chemicals management."

The master plan, which "will be implemented until 2020," intends to minimize harm to human health and the environment by managing chemicals "in an advanced way."  The plan contains "five strategies and 15 core action plans with the aim of securing more than 80% of information on harm and hazard of chemicals and reducing carcinogen of group 1 by 32% by 2020."  The main contents of the master plan include:

￮ In order to secure scientific information on chemicals, hazard assessment item will be increased from 9 to 13 and Good Laboratory Practice (GLP) will be expanded.

￮ A system will be made to prevent and respond to chemical accident and terrorism and small and medium sized companies will be received support for emission reduction.

￮ Mercury, nanomaterials and POPs, subject to international control, will be managed in a more enhanced way and participation by citizens in making policies will be expanded.

The announcement and additional information on the core policies can be found here.

Poll by Cleaning Products Organization Shows People Like Antibacterial Soaps

Questions have been raised about the use of antibacterial soaps, but a new poll released by the American Cleaning Institute (formerly the Soap and Detergent Association), finds that "the vast majority of Americans uses antibacterial soap and finds it to be a useful tool to prevent the spread of germs."  In fact, according to the survey conducted by Fabrizio, Ward and Associates, about "two-thirds of Americans would be “angry” at any government attempts to ban the products."

According to ACI, among the key findings of the poll:

• Nearly three-quarters of American consumers (74%) use antibacterial soap (56% use it regularly), finding it a very useful tool to prevent the spread of germs at home, in health care settings, schools, restaurants, child care centers, and public restrooms 
• 75% of moms with children in the household would be “angry” if the government took antibacterial soap off the market
• Overall, two-thirds of consumers would be upset if the government took antibacterial soap off the market
• 84% of adults do not have any health or environmental concerns about antibacterial soap
• By an eight-to-one margin, consumers would rather have the choice to buy antibacterial soap over removing it from the market based on alleged health and environment concerns

The poll results can be seen in this presentation.

The American Cleaning Institute represents "producers of household, industrial, and institutional cleaning products, their ingredients and finished packaging; oleochemical producers; and chemical distributors to the cleaning product industry."  Their web site is: http://www.cleaninginstitute.org/

EPA to Issue Test Rules for Remaining Unsponsored HPV Chemicals

Recently the USEPA published a final test rule requiring testing on 19 High Production Volume chemicals.  These were chemicals that were not sponsored by chemical manufacturers during the voluntary HPV Challenge program.  Since no one claimed them they came to be known as "orphan" chemicals.  And now EPA is planning to get the rest of them into the orphanage this year for testing.

At least that is the plan.

The reality is a bit less ambitious.  This second final test rule, which was published in the Federal Register only a week or so ago, was proposed way back in July of 2008...2-1/2 years ago.  The first final test rule was published in 2006 after having been proposed in the year 2000!  A third proposed rule was published almost a year ago and EPA hopes to get it final "sometime this year."  A fourth proposed rule is in the works.  The likelihood of the fourth rule going final this year is, well, not.

Even then this will cover only about 100 of the orphan chemicals from the 10-year long (plus 5-year overdue) HPV Challenge program.  There are several hundred other chemicals that are high production volume, that is, produced at over 1 million pounds per year, that are not even on EPA's radar to be proposed for testing.  And then there are the thousands of chemicals grandfathered onto the TSCA Inventory that have not been fully tested.  The orphan chemical question is one of the reasons put forth for why TSCA reform is so desperately needed.

All of this plays into the ongoing debate about what, or even if, will happen with TSCA reform this year.  The bills introduced last year are dead and new bills, should anyone in the House try to introduce one, will most likely have a different flavor than those from the last Congress.  A different flavor may or may not be a good thing, depending on your point of view, but the real question is whether there will be any flavor.  Industry says they want a federal law so they don't have to deal with a patchwork of state laws.  Environmental and health advocacy groups (NGOs) clearly want there to be TSCA reform.  Which would suggest that the path forward is clear.

But then.  This is Congress.

ECHA Updates List of Registered Substances Under REACH

The REACH regulation in Europe reached its first milestone this past November 30th with the registration of thousands of high volume (>1000 tonnes per year) and high concern (substances of very high concern) chemicals.  This week ECHA made its most recent update to the database containing the information on those registered substances.

You can access the database here.

The list consists of two parts.  The top part allows you to search for chemicals by name, CAS number or EC number.  It will tell you whether the data dossier has been disseminated, i.e., been made public on the ECHA web site.  Unfortunately most of the chemicals registered have not yet had their data dossiers disseminated online.

The bottom part of the page allows you to download the list in either XLS or CSV format.  For most people the XLS format (i.e., Excel spreadsheet) is the most useful.  Here you can scan the list or search for names, CAS numbers and other identifiers, and if the chemical is on the list it will indicate whether the registration was Full (full dossier), or an onsite or transported isolated intermediate (which requires only a reduced data dossier submission).  Here again, unfortunately, not all of the registered substances have been listed.  ECHA will continue to update the list, and the dissemination of data dossiers, as fast as they can process the thousands of dossiers received.

Once the dossiers are online you will be able to view the robust summary data for all of the endpoints, including "information on the substances which companies manufacture or import, their hazardous properties, their classification and labelling and how to use the substances safely, for example."

Obama State of the Union Expected to Call for Clean Energy Development

Tonight in the US President Obama gives his annual State-of-the-Union address (SOTU, for short).  Among many other topics (the SOTU tends to be a laundry list of generally unattainable desires), Obama is expected to note ongoing efforts to reframe the energy debate toward cleaner, greener technologies.  Given the continuing lagging jobs picture (job growth always lags economic recovery), he is expected to focus the discussion on how clean energy will help grow jobs.

While this has been a key plank in his platform from the beginning, it takes on new emphasis now that last year's cap-and-trade bills reached a precipice and promptly leaped off.  With the change in the make-up of Congress and promises to try to block EPA's greenhouse gas regulations, Obama will need to show how a shift to CO2-reduction technologies is good both for the environment and for job creation.  Specifically he will try to demonstrate that moving away from a fossil fuel-dependent energy system will result in increased competitiveness on the global marketplace.  This last point is critical as countries like China are investing in the development of wind and solar energy, both in terms of technology advancement and as a source of job creation.  China may be working hard to corner the fossil fuel markets now, but it is working even harder to position itself for the new world energy leadership it desires.  Obama will try to show that the short-sighted disagreements between members of Congress is actually holding back American ingenuity and giving a boost to our international competitors like China.

Also, in a nod to the new instant information era, the President will address questions posed to him by the American populace via YouTube or Twitter.  Questions must be received by midnight tonight and Obama will answer the top-rated ones on Thursday at 2:30 pm EST.  Questions should be submitted at: YouTube.com/askobama, or by using the hashtag #askobama on Twitter.

Let the Hearings Begin! Congress to Grill Obama Advisers on Regulatory Review Executive Order

President Obama issued an Executive Order (EO) on January 18th requiring all federal agencies to review existing regulations for the possibility of modifying or repealing them.  The idea is to determine "whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives." The EO applies to all agencies, but is being looked at especially with respect to the USEPA by Republican committee chairs in the House.

For example, Fred Upton, chair of the House Energy and Commerce Commitee has called for Cass Sunstein to testify at a hearing to be held on Wednesday (January 26). Sunstein is Obama's Office of Information and Regulatory Affairs, part of the White House's Office of Management and Budget.  While the focus of the hearing is supposed to be on the EO, it is likely that committee members will use the stage to also voice their opposition to EPA's recent rules under the Clean Air Act.

Based on public pronouncements by the incoming Republican majority in the House, we can expect to see hearings this year focused on reducing EPA's ability to publish rules and issue regulations.  Regulations addressing greenhouse gas emissions are particularly targeted in light of the previous Congress' inability to pass any climate change legislation and the unlikelihood of such legislation even being introduced in the current Congress.

Two NGOs file suit against EPA for failure to consult on Endangered Species Act

On January 20, 2011, two NGOs filed "the most comprehensive legal action ever taken to protect endangered species from harmful pesticides. In the filing, the Center for Biological Diversity (CBD) and Pesticide Action Network North America (PANNA) accuse the USEPA of "registering and approving hundreds of pesticides known to harm imperiled species" without appropriate consultation with federal wildlife agencies. The lawsuit "seeks protection for 214 threatened or endangered species in 49 states and two U.S. territories."

The Endangered Species Act (ESA) requires EPA to undertake a formal consultation with other appropriate agencies responsible for protection of fish and wildlife, e.g., the Fish and Wildlife Service and the National Marine Fisheries Service (commonly referred to as simply, "the services").  Over the years EPA has determined in many cases that the risk did not rise to the level of requiring outside consultation and that EPA had sufficient authority and practices under the FIFRA pesticide law to act.  However, CBD and PANNA charge that this practice is in violation of the ESA and favors the continued registration of pesticides that the services might otherwise deem to be too hazardous to fish and wildlife.

According to CBD,

The lawsuit seeks protection for 214 endangered and threatened species throughout the United States, including the Florida panther, California condor, piping plover, black-footed ferret, arroyo toad, Indiana bat, bonytail chub and Alabama sturgeon. Documents from the U.S. Fish and Wildlife Service and EPA, as well as peer-reviewed scientific studies, indicate these species are harmed by the pesticides at issue. More than a billion pounds of pesticides are used annually in the United States, and the EPA has registered more than 18,000 different pesticides for use. Extensive scientific studies show widespread and pervasive pesticide contamination in groundwater, drinking water and wildlife habitats throughout the country. 

CBD and others have successfully sued EPA in the past, forcing the agency to consult with the services and often resulting in the further limitation of pesticide use.  But "today’s litigation is the first on this scale, as it seeks nationwide compliance for hundreds of pesticides on hundreds of species"

An interactive map is available on the CBD web site.  Clicking on a state will bring up a list of endangered and threatened species that CBD and PANNA identify in their law suit as being at risk due to EPA's lack of consultation with the services.

The (Un?)Likelihood of TSCA Chemical Reform?

Reform of the ancient (in regulatory terms) Toxic Substances Control Act seemed to be finally on the front burner during 2010.  After years of promising, the Democratic-led House and Senate each introduced bills. The House, led by Energy and Commerce Committee Chair Henry Waxman and subcommittee chair Bobby Rush, even held a series of meetings with stakeholders.  This in addition to several public hearings on both the House and Senate side.

And then came the election.

The question now is a matter of priority.  With the Republican party gaining control of the House, Representative Waxman is no longer chair (he becomes ranking member).  Instead the committee, which has a broad oversight mandate, is being chaired by Republican Representative Fred Upton who has stated that he will focus on repealing the health care law passed in the last Congress (a vote was held this week), "fighting rampant regulations," and reducing spending, including that of the EPA.

In short, no one seems to know at this point whether the committee will get around to addressing TSCA reform, or for that matter, whether TSCA reform bills will even be reintroduced.  On the Senate side the Democrats still have control and thus still chair the various committees.  Long-time TSCA reform champion Senator Frank Lautenberg has stressed that he plans to reintroduce his "Safe Chemicals Act," but he didn't provide a timetable.  Even if he does there would need to be a bill introduced on the House side, and right now it is not a very high priority for Representative Upton or Speaker Boehner.  So we will have to wait.

While that happens the NGOs have redoubled their efforts to push TSCA reform legislation, and barring action on the federal level are pursuing state level actions.  But as a commenter on my post yesterday pointed out, the past election resulted in strong conservative gains in many state legislatures, which along with  continuing fiscal uncertainty, is likely to limit the ability of states to pick up the slack.  Meanwhile, the message coming from industry has generally been that they prefer federal level modernization of TSCA rather than a patchwork of state regulations, either on individual chemicals (including bans) or as "TSCA Reform Lite."  And while some parts of industry, e.g., larger companies, may be comfortable with greater health and safety disclosure since they may have already compiled the data for REACH, other parts of industry argue that they are less capable of handling extensive data submission demands on, e.g., lower volume chemicals.  These special "small and medium sized entities" issues were addressed to some extent in the legislation proposed in 2010, but it remains unclear what form any new legislation may take.  In short, there are a lot of issues still to be worked out should Congress decide to move forward.

I would not expect any activity on TSCA before summer or even fall, and after that the dynamics of a presidential election year may distract members of Congress from issues like TSCA reform.  So we will have to wait and see. 

30 States Introduce Chemical Restriction Laws as TSCA Chemical Reform Lies Dormant

With TSCA reform activities essentially dormant (and perhaps dead), a total of 30 separate US states have introduced chemical reform legislation.  According to the advocacy NGO Safer Chemicals, Healthy Families, "on Wednesday, January 19, legislators and advocates in thirty states across the country and the District of Columbia will announce legislation aimed at protecting children and families from harmful chemicals."  They also claim that "despite well-funded opposition from the chemical industry, 18 state legislatures have already passed 71 chemical safety laws in the last eight years by an overwhelming, bipartisan margin – with more to come this year."

Last year both the House and Senate introduced "Safe Chemical" bills in an attempt to modernize the 34-year old Toxic Substances Control Act.  While on the House side there were several stakeholder meetings held to get input so that the bills could be fine-tuned, no substantive action occurred in committee in an effort to get votes on the bills.  Which means they must be reintroduced in this new Congress.  With the Republicans gaining control in the House and narrowing the gap in the Senate, along with the continuing lagging (though improving) economy, it is unclear whether any federal level TSCA reform can get passed this year or next.

With that in mind NGOs are shifting their efforts to encouraging state level action.  According to the NGO's press release:

"The American public is demanding new chemical safety laws, and state elected officials – both Republicans and Democrats – are responding," said Andy Igrejas, Campaign Director of the Safer Chemicals, Healthy Families coalition. "At some point Congress will wake up and realize it is better for industry and public safety to make these changes at the federal level, as well." 

Planned legislation includes comprehensive state laws in nine states, phase outs of the plasticizer BPA in at least 17 states, calls for federal action in at least 11 states, bans of cadmium in childrens products, and exposure reductions in at least three states to a brominated flame retardant.  More information is available on the SCHF web site.

Note: US state graphic from SCHF.

Oops - Make that 107,067 Substances Notified, Not 24,529, Under EU Classification Scheme

Okay, so it was just a little bit off.  On January 4, 2011 the European Chemicals Agency (ECHA) announced with fanfare that 3.1 million classification and labeling (CLP) notifications had been received, and that these covered a total of 24,529 substances.  Yesterday ECHA announced, with a bit of flush to their faces, that they miscounted - the number of substances covered by those notifications was actually 101,067!

The problem stems from the rush counting (after all, the announcement was less than 24 hours after the notification deadline).  It turns out that some of the bulk files received were counted as single substances when in fact they were notifications of many distinct substances.  Hence the quadrupling of the initial substance count.

Of course, the number will continue to rise as any hazardous substance that manufacturers or importers place on the market must submit CLP notifications prior to doing so.

Chemical Companies Register Thousands of Chemicals Under REACH - Now What?

The first 25,000 registration dossiers under REACH - for nearly 3,400 chemicals - were submitted to the European Chemicals Agency (ECHA) by the November 30, 2010 deadline.  Over 3.1 million classification and labeling notifications were received by the January 3, 2011 deadline.  The next tier registration deadline is not until June of 2013.  So now what?  A lot, so while many companies are feeling a sense of relief from meeting the deadlines they should not get too comfortable.

ECHA has a statutory requirement to review a minimum of 5% of the REACH registration dossiers submitted.  Sure, that's only about 1,250 dossiers, right?  Not so fast.  The 5% figure is a minimum.  ECHA could conceivably review 100% of the dossiers if they wanted to, assuming they could come up with the time and manpower resources (which is highly unlikely).  But many of the dossiers submitted contain "Annex IX and X testing proposals."  For those less familiar with REACH there are a series of Annexes that list the various test endpoints for which data must be provided.  The endpoints listed in Annexes VII and VIII were required to be provided, including testing if necessary, along with the registration.  But for Annexes IX and X, which include most of the longer-term, animal-intensive, test methods, registrants were required only to provide results they already had in-house but were banned from conducting any additional animal testing prior to submission.  Instead they provided "testing proposals" indicating what additional Annex IX and X tests they planned to conduct.

What all this means is that ECHA must review all of the dossiers that include testing proposals in order to determine whether or not the proposed studies will actually inform their decision-making process.  They will not allow animal testing if they think it will not change their decision.  They also will insist that any testing be conducted in collaboration with other registrants in order to minimize animal testing.  To do this they will publish a list of substances proposing testing and ask for anyone with available data to come forward.  These third parties then have 45 days to provide valid data to address the endpoint, and assuming it fulfills the data requirement the registrants will have to pay the data holder for use of the existing data.

ECHA has until December of 2012 to respond to testing proposals received by the first registration deadline. Companies then will have a set period of time in which they must conduct the studies and update their registration dossier.  The time frames will vary depending on the type and amount of testing since some studies could take 2 to 3 years to conduct.

New EPA Web Site Seeks to Increase Transparency of Regulatory Activity

The USEPA continues with its goal to increase transparency in government by launching a new web site called Reg Stat.  The web site lets the general public keep track of the regulatory process and "the number, type, and range or regulatory documents developed each year by the agency."  According to EPA:

EPA publishes roughly 2,000 documents in the Federal Register (FR) each year. Of the documents published each year, the majority are Notices. The Office of Policy (OP) has identified a subset of these as "Administrator-Signed Rules". EPA's Administrator-Signed rules are only those published actions which are signed by the Administrator and which modify or propose to modify the Code of Federal Regulations (CFR) and therefore, contain rule text. The data compiled and presented on this site primarily draws on this subset of rules signed by the EPA Administrator.

A key feature of the site is a set of graphs and charts to document how many rules are being signed, how long it takes to get through the various steps of each regulatory action, and the number of rules published in the Federal Register.  There is also a link called "Regulatory Gateway" in which the public can see what EPA rulemaking, especially the priority rules, is currently in progress.

The EPA Reg Stat site can be viewed here.