EPA Proposes Changes to TSCA Reporting Requirements

The move to strengthen TSCA, or at least the move to more fully utilize the current authority given to EPA under TSCA, took another step this week as EPA proposed changes to the TSCA Inventory Update Rule (IUR) reporting requirements.  The changes would increase public disclosure by limiting what companies can protect as confidential, as well as increase the amount and frequency of data submitted.  The new changes would also require the submission of these data electronically.


According to EPA, "this information helps the agency determine whether chemicals may pose risks to people or the environment."

“Enhanced reporting on the production and use of chemicals will help give the American people greater access to information on the chemicals to which their children and families are exposed every day,” said Steve Owens, EPA’s assistant administrator for the Office of Chemical Safety and Pollution Prevention. “The proposal being announced today will allow the agency to more effectively and expeditiously identify and address potential chemical risks and improve the information available to the public on chemicals most commonly used in commerce.”

Commenting on the proposed rule is open until October 25, 2010, and if finalized in time would be effective for the next IUR reporting period schedule for June 1 - September 30, 2011.

California Environmental Health Office Publishes Green Chemistry Hazard Traits

Many people know that the state of California has been working on a "green chemistry" program, though it has struggled because of the severe economic downturn.  The 2008 statute requires the Office of Environmental Health Hazard Assessement (OEHHA) to specific "hazard traits," i.e., environmental and toxicological endpoints and other relevant data that are to be included in the state's "Toxics Information Clearinghouse."  The California Department of Toxic Substances Control (DTSC) will use the clearinghouse information to help identify chemicals of concern in consumer products.

To get things started, and to jump start the process, OEHHA has developed what they are calling a "pre-regulatory draft" for discussion.  Based on feedback, the final language may change substantially.  Which is highly likely given that it lists some pretty specific - and new - types of hazard traits that they will consider using in regulation.  Besides the usual acute and chronic toxicity studies, they also include:

• Carcinogenicity
• Cardiovascular toxicity
• Dermotoxicity
• Developmental toxicity
• Endocrine effects
• Epigenetic toxicity
• Specific organ toxicity (e.g., liver, kidney)
• Neurotoxicity
• Ocular (eyes) and Ototoxicity (ears)
• Respiratory toxicity
• and more!!

For environmental hazard traits, besides acute and chronic toxicity they suggest:

• Wildlife survival impairment
• Wildlife reproductive and developmental impairment
• Wildlife growth impairment
• Non-target phytotoxicity
• Loss of genetic and biodiversity
• Eutrophication
• Ambient ozone formation
• Global warming
• and more!!

Quite a list.  

Getting TSCA Chemical Reform Right - Are We Close?

What’s important is that we do it right. With 96 percent of all manufactured goods touched by chemistry, any new law must protect public safety without destroying jobs or America’s ability to continue leading the world in innovation.

Such are the words of Cal Dooley, President and CEO of the American Chemistry Council, one of the leading trade associations representing the chemical industry.  Dooley, who is a former Congressman so knows how the political process works, was responding to an editorial in the Las Vegas Sun. The editorial supported the idea that chemicals on the market should be tested to "ensure product safety."  The paper asserted that "manufacturers can simply refuse to test their chemicals, allowing them to claim that they do not have information on toxicity or cancer-causing potential."

Dooley took exception to some of what the editorial said, saying that the editorial "significantly exaggerates the state of the nation’s product safety regulations, serving to confuse rather than inform your readers."  He agrees that the current TSCA law "needs to be updated," and reminded the Sun that the American Chemistry Council "has been participating in the public discussion of this for the past two years."

Yesterday I mentioned that "jobs" had become a new catchword for TSCA reform.  In his letter to the editor, Dooley noted that "in Nevada alone, our industry contributes to over 2,000 direct jobs, and for every chemical industry job, an additional 1.7 jobs are created within the state’s economy. With an unemployment rate at an astounding 14.2 percent, Nevadans should look carefully at any new regulation that might affect their jobs, and not just accept proposals at face value."

The key to all of this is getting TSCA reform right.  Advocacy groups want all chemicals to be tested; industry wants to have a focused, prioritized testing regime that is more manageable for both them and EPA.  They rightly point to the massive ongoing REACH effort, including the creation of an entirely new chemicals agency to handle the receipt of tens of thousands of data dossiers. Given that EPA is unlikely to get that kind of new funding, a more workable solution that provides data on the most toxic and/or most widely used chemicals is probably closer to being "doable."

With TSCA Chemical Reform Likely to be Pushed Off Until Next Year - What Happens Now?

TSCA reform is dead.  Long live TSCA reform.

Okay, maybe too melodramatic.  But it would seem that the chances of passing a TSCA bill anytime in this session of Congress are pretty much done.  So with that in mind, what's next?  The answer of course is nobody really knows, and we aren't likely to know until after we see the outcome of the elections in November.

But we can make some guesses.  To begin with, we can assume that some sort of bill will be reintroduced in the next Congress, probably mid to late next year (2012 is a presidential election year).

First off, it is highly likely that the final reintroduced bills will shift toward a less data intensive system.  By that I mean that there will not likely be a requirement for all existing chemicals to have a complete data set produced and submitted to EPA in the fashion of REACH in Europe.  Even with the tiered approach (i.e., chemicals of highest tonnages are required to register first, smaller tonnages later), the REACH system has been a huge burden on industry.  Massive numbers of man-hours, costs, and coordination among sometimes hundreds of competitors to produce data dossiers have been needed, plus several years of activity, to get to a point where companies are struggling just to pass the initial completeness checks.  And then only 5% of those dossiers are required to be reviewed by the chemicals agency.  That's a lot of work to fill a lot of file cabinets.  But does it make us safer?  Not in the short run at least because it will take years of review even for those 5% to see if there are any risks.

Secondly, look for lots of action in the states. There are two reasons why industry has been publicly in favor of TSCA reform.  The first is simply public relations.  But the second is because they understand that TSCA reform is needed to avoid the patchwork of 50 sets of state regulations.  In the past industry had to worry about only a few states "going proactive," (e.g., California), but now there are many states who have been actively trying to ban specific chemicals, put restrictions on the use of chemicals like phthalates in baby bottles, and banning plastic bags.  And that is no accident.  Advocacy groups have actively worked with states to develop state-level regulations in an effort to push the federal-level process along.

Thirdly, look for Democrats (assuming they maintain control of both houses of Congress) to figure out how TSCA reform will help create jobs.  With the country still in the throes of a recession, and with predictions that it might be a while before we get the unemployment rate down, jobs are on everyone's mind.  The code word "jobs" was dropped by representatives of both parties in the House hearing held at the end of last month.  And industry representatives have been quoted saying that the new law cannot inhibit innovation or cost the industry jobs.  So if lawmakers want industry input they have to include the "jobs" code words in their language as they move forward.

Finally, this is an opportunity.  While no one could credibly argue that the process of TSCA reform is moving too fast (it took years of promises before the bills were introduced), the time between now and the reintroduction can be used wisely by all stakeholders to ensure the best combination of protection of human health and the environment with a workable plan that encourages job creation, green chemistry, and innovation.  Now is the time for everyone to put in a good faith effort.  I'm just not sure everyone is ready to do that.

Summary highlights changes between discussion draft and the formally introduced House TSCA chemical control reform bill

The recently released TSCA reform bill in the house has garnered a lackadaisical response from most stakeholders.  Sure, there have been statements from major stakeholders, but mostly these have been generic and in accordance with pre-scripted talking points.  In large part this is because all parties feel that the bills won't go anywhere in this session of Congress and will have to be reintroduced in some version in the next Congress, which may look quite different than it does now.


Still, this is the time to be working out the differences.  That said, will stakeholders and Congress start the process now, or just take a wait and see attitude until next year.  Until that time, these are the main changes between the "discussion draft" floated by the House in April and the current formal House bill.  Needless to say there are still differences between the House and Senate versions to deal with as well.

Mixtures. The legislation addresses concerns about the burden and workload associated with regulating all mixtures distributed in commerce by clarifying the definition of “mixture,” by allowing the Administrator to group multiple mixtures for treatment under TSCA, and by making the Administrator’s authority to regulate mixtures discretionary in all cases.

Safety standard. The legislation incorporates suggestions for making the safety standard more workable by modifying the standard to be based on the intended uses of the substance only, while still providing the Administrator authority to consider exposures associated with known or foreseeable uses that are not identified as intended uses.

New Uses and New Chemicals. To increase workability and support innovation, the scope of the pre-manufacture notice requirement for new mixtures and new uses has been changed significantly. Under the legislation, no new use of a chemical substance or mixture will require pre-manufacture notification unless the chemical substance or mixture has already received a safety standard determination. New mixtures will also be able to enter the market without satisfying the requirements of Section 5 of TSCA, as will chemical substances exempted because of their intrinsic properties and chemical substances approved as safer alternatives.

Minimum Data Set (MDS). The legislation provides more detail about the components of the MDS and improves the workability of the submission requirements by staggering submissions based on production volume. The bill also provides greater flexibility to the Administrator in determining the penalties for a failure to meet the requirements of a test rule or order.

Confidential Business Information (CBI). The legislation reduces the burden of reviewing requests for confidential treatment of information by requiring the Administrator to review only a representative sample of confidentiality designations and imposing penalties for wrongful designation. The legislation also responds to concerns by allowing for renewal of designations.

Penalties. The legislation provides greater flexibility to the Administrator in determining the penalties for violations committed by an individual manufacturer or processor to avoid unnecessary commercial disruptions.


Exemptions Based on Intrinsic Properties. The legislation responds to concerns about the burden on the Environmental Protection Agency to evaluate chemical substances known to be safe by creating a new exemption from core requirements of the Act for chemical substances or mixtures that have been determined by the Administrator to be safe based on their intrinsic properties.

Safer Alternatives and Green Chemistry and Engineering. This legislation improves and clarifies the process and requirements for approval of safer alternatives to existing chemical substances and mixtures. The legislation also requires the Administrator to promote and support green chemistry and engineering research and to establish a green chemistry workforce education and training program.

International Cooperation and Agreements. This legislation clarifies the obligation of the Administrator to cooperate in international efforts on chemical safety. The bill clarifies and improves the procedures to be implemented if and when the United States becomes a party to designated international agreements on the regulation of chemical substances and mixtures, to ensure that U.S. efforts are consistent with applicable obligations under those agreements.

New design for The Dake Page

Okay, I'm working on a new design template for The Dake Page. 

See, for example, the link tools below. You can email the article to someone you think would find it interesting.  You can also tweet it to your Twitter account or share it on your Facebook...or link to your blog or even Google buzz it.

Let me know if the new design is better...or worse...or the same.

Chemical Insecurity? USPIRG seems to think so in new report

The U.S. Public Interest Research Group has been around for a long time, though perhaps doesn't roll off the tongue (or garner as much publicity) as well Greenpeace and PETA.  But yesterday they released a report that identifies "14 chemical companies that endanger the most Americans in the event of a chemical release."  The report called "Chemical Insecurity: America's most dangerous companies and the multimillion dollar campaign against common sense solutions," pulls no punches as it names names...or at least those names that it believes have been lobbying hard against passage of new laws to change security practices at the nations chemical manufacturing facilities.  The most recent bills were introduced recently by Senator Frank Lautenberg of New Jersey, though passage seems unlikely in this Congress.

According to USPIRG, the key findings of the report include:

• The fourteen companies with the most people in the danger zones in the event of an accident or attack on one of their facilities are: Clorox, Kuehne Chemical, JCI Jones, KIK Custom Products, DuPont, PVS Chemicals, Olin, DX Holding, Solvay, Valero, Occidental Petroleum, Honeywell, Dow Chemical, and Sunoco..

• The Clorox Company, Kuehne Chemical, and JCI Jones Chemical each own facilities that together put more than 12 million people at risk.

• These fourteen companies and their affiliated trade associations spent $69,286,198 lobbying the committees with jurisdiction over chemical security legislation in 2008 and 2009—Energy and Commerce and Homeland Security in the House, and Environment and Public Works and Homeland Security and Government Oversight in the Senate.

• The political action committees (PACs) of these fourteen companies and the PACs of their affiliated trade associations gave $2,187,868 in the 2008 election cycle and the 2010 cycle to date directly to the campaigns of members of the committees of jurisdiction over chemical security legislation.

• These fourteen companies and their affiliated trade associations employ 20 ‘revolving door’ lobbyists who previously staffed the committees of jurisdiction over chemical security and toxics before becoming lobbyists on those same issues.

EPA test results show eight oil dispersants are all about the same toxicity

Soon after the Deepwater Horizon rig exploded into flames and sunk more than three months ago, a chemical called Corexit 9500A was used to disperse the oil. That didn't mean it was gone, just spread out in the water column more so that it is 1) less noticeable, and 2) has a better chance to degrade or to simply dilute further away.  But many questioned whether the dispersant chemical itself wasn't a danger to aquatic wildlife.


EPA has been testing Corexit and seven other dispersant chemicals to see if any substitutes are less toxic.  Well, it turns out they are all pretty much the same level of toxicity when mixed with Louisiana Sweet Crude Oil.  According to EPA, "these results confirm that the dispersant used in response to the oil spill in the gulf, Corexit 9500A, when mixed with oil, is generally no more or less toxic than mixtures with the other available alternatives. The results also indicate that dispersant-oil mixtures are generally no more toxic to the aquatic test species than oil alone."

Some have suggested that the fact EPA had to do testing in the first place, i.e., didn't already have the toxicity data for these chemicals, demonstrates that the Toxic Substances Control Act (TSCA) is totally ineffectual.  The 63,000 or so existing chemicals that were grandfathered onto the TSCA Inventory over 30 years ago had no testing done at the time and only the most high volume ones produced during a certain period have had extensive data gathered on them.  New chemicals undergo a rigorous review by EPA, but based almost entirely on computer models and comparisons to chemicals of similar structure.  Most new chemical notifications include no toxicity testing data, and none is required under the current law unless EPA can show the likelihood of sufficient harm (which is hard to do when you have no data on which to base an assessment of harm).


Congress has started its August recess, after which they will focus mostly on trying to get reelected.  So it looks like next year for TSCA reform.

EPA Moves Forward with Chemical Action Plans

Last fall EPA Administrator Lisa Jackson and OPPTS chief Steve Owens promised that while Congress debated TSCA reform, the EPA would move forward with what they called "Action Plans."  EPA then released five action plans in December 2009, with the idea that they would be releasing about 4 more per quarter.  They have slipped from that idea, but are just about ready to issue a couple of more.

Several months ago, in the spring, EPA sent two action plans to the Office of Management and Budget (OMB), as is policy for any activities with potentially significant impacts on business.  On Monday OMB finally approved both action plans, one for nonylphenol and its ethoxylates and the other for the brominated flame retardant, hexabromocyclododecane (HBCD).

So expect EPA to release the two plans shortly and post them on their web site.  Both plans will likely contain provisions similar to the five previous plans, including consideration of the use of a series of existing TSCA rulemaking authorities. 

Meanwhile, EPA has also been working three additional test plans for siloxanes, benzidine dyes, and diisocyanates.  No word yet on the schedule for those, which also will have to go through OMB review.

NGO Reaction to the House Toxic Chemicals Safety Act of 2010

Last week I gave some initial industry reactions to the formal introduction of the House version of the Toxic Chemicals Safety Act, i.e., the TSCA reform bill.  I've missed a few days but today will jump back in with some of the key NGO reactions.

Testifying at the hearing on July 29th was Richard Denison, lead toxicologist at the Environmental Defense Fund.  Dr. Denison spoke on behalf of both EDF and the EDF-led Safer Chemicals, Healthy Families Coalition. Not surprisingly Denison was very supportive of the bill, at least the promise of the bill, and emphasized that it was critical that the bill move forward in this Congress.  That seems unlikely given that the actual legislative days left in session before the election are few.  Also, while he was supportive of the bill and appreciative of industry's claims of support, he posted in a rather incredulous sounding blog on the EDF site questioning "should we continue to take the chemical industry at its word when it insists it's still for TSCA reform."


Environmental Working Group President Ken Cook was another witness at the hearing, and he too was very supportive of the bill.  He "called on Congress...to pass tough new legislation to repair a “broken toxic chemicals policy” that is currently so weak “the American public has lost confidence that the products they are using, the chemicals they are being exposed to, are safe.”"  However, Cook also took exception in his blog post with what he saw as less then credible support by industry.  He also felt that in the opening comments were largely to "set the contrary theme voiced by a number of Republicans, scoring the bill with words including “cumbersome,” “unworkable,” “ineffective,” and “overly broad.”  The word "jobs" (as in, chemical reform would hurt jobs) was also a common term used by Republicans and also by several Democrats (e.g., Rep. Dingell of the hard hit state of Michigan).

Dr Mark Mitchell, President of the Connecticut Coalition for Environmental Justice also voiced support for the bill.  Mitchell was most emphatic that any new chemical standards must be stringent enough to protect the public and vulnerable populations, and felt that a “reasonable certainty of no harm” would accomplish this goal.  He also noted that “in its current state," the bill "will go far in addressing environmental justice issues with chemical policy.”

With the August recess about to start, we'll see what happens between now and the end of the year on this and the Senate bill.  More than likely they will have to be reintroduced next year.

Toxic Chemicals Safety Act Hearing TODAY in House (PLUS, A List of Key Changes from Discussion Draft)

A reminder that today, July 29th beginning at 10 am ET there is a hearing of the Subcommittee on Commerce, Trade, and Consumer Protection on H.R. 5820, the “Toxic Chemicals Safety Act of 2010.” 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."

The invited witnesses at today's hearing include:

• Steve Owens, Assistant Administrator, Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency
• Richard Denison, Ph.D., Senior Scientist, Environmental Defense Fund
• Calvin M. Dooley, President and Chief Executive Officer, American Chemistry Council
• Howard Williams, Vice President, Construction Specialties, Inc.
• Mark Mitchell, M.D., M.P.H., President, Connecticut Coalition for Environmental Justice
• Beth Bosley, Society of Chemical Manufacturers and Affiliates, Inc.
• Ken Cook, President, Environmental Working Group

Most of these witnesses have testified before in the various House and Senate hearings on TSCA reform over the last 18 months.


A briefing memo, PDFs of the proposed bill, and "letters sent to witnesses to explain technical corrections" are all available on the Subcommittee hearing page. The "technical corrections" were to remove four words inadvertently included in the bill that should have been deleted. 

Most helpful is a brief (2-page) document that highlight "changes made to the discussion draft" first provided in April.  The changes include:

- Clarification of what they mean by "mixtures"
- Incorporation of suggestions related to the proposed "safety standard" to make it more workable
- Significant changes to the scope of the premanufacture notice requirement for new mixtures and new uses
- Provision of more detail about the "minimum data set" and the inclusion of a staggered reporting schedule based on production volume
- Creation of an exemption from core requirements for substances and mixtures that have been determined by the EPA to be safe based on intrinsic properties
- Improved process and requirements for approval of safer alternatives

More details after the hearing.

Industry Reaction to the House Toxic Chemicals Safety Act of 2010

As noted in my posts over the last few days, Representatives Waxman and Rush formally introduced their Toxic Chemicals Safety Act of 2010.  Initial reactions have been offered by various stakeholders.  Given that all were released before anyone really had a chance to review the bill, they not unsurprisingly reflect the prior positions developed following the discussion draft.

Industry's reaction was mixed and somewhat noncommittal.  The American Chemistry Council, which represents many of the largest manufacturers of chemicals, issued a statement noting that the bill "is a step toward modernization of the nation’s chemical safety laws," but also suggesting that "more effort will be required to develop legislation that protects consumer safety, preserves America’s position as a leading innovator and safeguards American jobs."  The National Association of Manufacturers were more direct in stating their dislike for the bill, stating "“manufacturers are concerned with the direction taken in the Toxic Chemicals Safety Act.  In its current form, the bill hurts manufacturers’ ability to innovate and remain competitive in a global marketplace.  It dramatically expands the scope of the Environmental Protection Agency’s authority over every sector of our nation’s economy, sets unrealistic standards and timeframes and puts unnecessary burdens on manufacturers with new and inconsistent statutory requirements."   Similarly, the Society of Chemical Manufacturers and Affiliates, which represents many smaller and specialty manufacturers, states that the legislation would significantly hamper innovation and impose stringent regulatory burdens on batch, specialty and custom chemical manufacturers - particularly small and mid-sized companies."

No one should be surprised that industry organizations, which had largely indicated support for the modernization of TSCA for the greater part of the last year or two, would express misgivings about the bills when finally introduced.  Obviously after 34-years under the old system, there is hesitancy to jump into something new too fast.  Especially when it could be a significant burden on their memberships.  Given the reaction from industry this would seem to be the final nail in the coffin for passing TSCA reform legislation in this Congress.  With only a handful of legislative days left in the session and a likely rather eventful mid-term election, clearly industry and the minority party in Congress have no incentive or desire to rush a comprehensive bill to passage.  And so there seems to be much work to be done before another version gets introduced in the next Congress beginning January 2011.

Tomorrow I'll take a look at the advocacy community reaction.

House Hearing on TSCA chemical Reform Scheduled

The House Subcommittee on Commerce, Trade and Consumer Protection has scheduled a hearing on the newly introduced TSCA reform bill for this Thursday, July 29, 2010 at 10:00 am in the Rayburn Office Building in Washington DC.

The topic will be last week's introduction by Representatives Henry Waxman (D-CA) and Bobby Rush (D-IL) of H.R. 5820, the Toxic Chemicals Safety Act of 2010.  This is the formal bill for the discussion draft Waxman and Rush offered on April 15th when Senator Frank Lautenberg (D-NJ) introduced the Senate version of the bill.  The goal of both bills is to reform or modernize the 34-year old Toxic Substances Control Act that provides EPA with the authority to regulate chemicals.

A brief summary of the major points of the House bill is here.

The full text 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.