As Promised, USEPA Sends First Chemical Action...

As promised by Steve Owens at the November 17, 2009 hearing on TSCA chemical control in the House, the USEPA has now sent for White House review the first six of its â€œaction plansâ€ for addressing chemicals of concern under the authority of the existing toxic chemical law. This is the first of a series of steps taken by USEPA as it more aggressively uses its current authority while waiting for a new law to be enacted by Congress.

As is the standard procedure, USEPA first sends the action plans to the White House Office of Management & Budget (OMB), which it did on December 14th. As Owens previously noted, the action plans are designed to "outline the risks that use of these chemicals may present and what steps we may take to address those concerns."

According to USEPA's web site, the initial six chemicals being evaluated are:

* Benzidine dyes and pigments
* Bisphenol A (BPA)
* Penta, octa, and decabromodiphenyl ethers (PBDEs) in products
* Perfluorinated chemicals
* Phthalates
* Short-chain chlorinated paraffins

Once the plans are published, USEPA would then engage with stakeholders (both manufacturers, users, and the public) to prioritize additional chemicals for evaluation. The goal is to make new action plans available to the public every four months. The final result of the reviews could lead to labeling requirements, restrictions and bans under section 6 of TSCA, and other actions as appropriate.

Needless to say, industry is less than thrilled about USEPA exerting their existing TSCA authority and, in fact, there is the possibility that industry could argue USEPA has overreached that authority. However, industry must be careful if they choose to fight the USEPA's actions, as it may have the reverse effect of demonstrating to US lawmakers the urgency of a need to modernize TSCA into something that puts much more of the onus for proving chemical safety onto the companies that manufacture the chemicals.

Comments: 11

Larry M. Dec 16, 2009, 7:56am UTC

It's strange that a company can put some chemical into the environment without evidence of the safety of that chemical. More "tragedy of the commons."

David K. Dec 16, 2009, 8:07am UTC

Yes, unfortunately so. Though industry would argue that they do have evidence of safety (or at least evidence of no harm). The impetus behind TSCA reform is in part because the bar for Agency action seems to be too high to allow the EPA to effectively ensure safety...and that it should be industry that has this responsibilty, not EPA.

Larry M. Dec 16, 2009, 8:14am UTC

We have seen the consequences of letting industries police themselves. It isn't pretty.

Elizabeth Ann R. Dec 18, 2009, 6:24pm UTC

Precisely.

David K. Dec 20, 2009, 10:14am UTC

Yes, industry does not have a good track record of self-policing.

Duane B. Jun 2, 2010, 6:59pm UTC

Doesn't the government require "that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees". That suggests to me that the chemicals are analyzed and exposure hazardous are identiified and published.

I believe that many of those companies whose practices are being question were investigating the hazards assoicated with their chemicals, developing safe practices, and sharing both long before there even was an EPA and OSHA.

It is too bad it is easier to comdemn a whole industry without looking for what works. Have you ever wondered if the industry has made any effort to help the agencies and countries around the world to better understand chemcials, the hazards, the best practices to safely/environmentally manage them?

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Gerry Wass Dec 16, 2009, 1:43pm UTC

I'm trying to interpret your conversation with Larry above, and I'm wondering if we are moving to a point where industry must prove safety in deeper ways than we've seen so far. And I guess I share Larry's concern, so I'm looking forward to your interpretation, David.

David K. Dec 16, 2009, 5:14pm UTC

Industry is agreeable that TSCA needs to be modernized. Based on public pronouncements, their main thinking is that EPA should be in charge of reviewing the available information and prioritizing chemicals that they feel are in need of more in-depth review. At that point they would accept EPA requesting additional data, to which the industry would respond, and then a full assessment would be conducted.

However, this is essentially what is happening now. The problem is that EPA has found the burden of proof to be so high for them that they can't get anything accomplished. EPA thought it had provided a solid case for the risks of asbestos, but after 10 years of fighting they lost in court and decided it really wasn't worth the effort. And that was one chemical for which most people agree is not particularly healthy to inhale.

So the changes that would be needed to follow the industry perspective would be to lower the bar somewhat for EPA to request additional data. [Right now they must have the data they need to have enough proof to request the data they need.]

Not surprisingly, the advocacy community feels that there needs to be a general data call in for all chemicals, though perhaps the timing could be prorated based on inherent hazard and/or tonnage (similar to what REACH does in the EU). It still requires prioritization since the fact is that even with new monies EPA can only handle a limited number of reviews at a time.

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David K. Dec 16, 2009, 5:18pm UTC

I would add that EPA's first list is going for what everyone refers to as the "low hanging fruit." Most of the chemicals in the list above have already been identified as problems. For example, the PBDEs (which are fire retardants present in most computers and many clothes, furniture, etc.) have been banned or severely restricted in many states and countries. So picking them for review should make it easy to get them through the process and show some progress. And I'm sure everyone has heard of BPA and phthalates. The others are also well-known in risk assessment circles.

Getting beyond these low hanging fruit into the other 85,000 or so chemicals on the Inventory in the US will get more difficult, which is why there needs to be a system that prioritizes the most likely ones to be problematic.

How that will be done is still up in the air.

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Rachel D. Dec 16, 2009, 7:59pm UTC

Honestly this is just a paper tiger. All of these chemical classes have been heavily regulated for years. Doing a risk analysis on them now is just redundant paperwork. They'd do a heck of a lot better and would save an enormous amount of taxpayer money if they just purchased a bunch of the IARC monographs that have been published on these classes.
I also seriously doubt there will be any backlash from chemical manufacturers. Most of these chemicals have been eliminated from most products, so this is just putting on paper something that has already happened by consumer demand.

David K. Dec 17, 2009, 2:48am UTC

I agree that these first set of chemicals seem to be, as I said in my comment above, low hanging fruit. I believe that EPA is trying to get a process in place to work within its existing authority so that it can be accomplishing something while Congress comes up with a new way.

We'll see what happens.

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As Promised, USEPA Sends First Chemical Action Plans to OMB for Review

Comments: 11

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