How to turn a "quick start" into a choke point

Richard Denison, Ph.D., is a Senior Scientist.

Over the last few months, I was heartened to hear a number of industry stakeholders in the debate over TSCA reform embrace the idea of designating in TSCA reform legislation a "jump-start" or "quick-start" list of chemicals of high concern or priority.  The idea was to allow EPA to hit the ground running, by having an agreed-to list of chemicals on which it could immediately initiate action.  Well, it now appears many in industry actually have something far slower and far more cumbersome in mind.

The Subcommittee on Commerce, Trade and Consumer Protection of the U.S House of Representatives' Energy and Commerce Committee held a hearing yesterday on the question of "prioritization":  How a new law could best spur prompt identification of and action on the chemicals of highest concern.  Mr. Bill Greggs testified on behalf of three trade associations prominent in the debate over TSCA reform:  The Consumer Specialty Products Association, the Soap and Detergent Association, and the Grocery Manufacturers of America.

In Mr. Greggs' testimony and answers to questions from subcommittee members, what industry has in mind when it talks about a quick start became much clearer:

  • There would be no list of chemicals in the bill.  Nor would there even be a process laid out by which EPA would identify chemicals of highest concern for the purpose of promptly taking action to reduce exposure to them.
  • Instead, the bill would merely contain some potential hazard and exposure triggers for EPA to consider.
  • The legislation would then impose a risk-finding requirement on EPA (sound familiar?), by restricting any further effort to only those chemicals that are found – on the basis of existing information, however incomplete – to pose BOTH the highest hazard and the highest exposure.
  • Once the legislation passed, EPA would first have to develop specific high-hazard and high-exposure criteria, and then apply the criteria through a review of all chemicals it knows to be in commerce and for which such hazard and exposure data exist.
  • Then EPA would have to provide industry with a robust process by which industry could – and surely would – challenge each and every designation of such a chemical by EPA.
  • Assuming any chemical made it through that process, such highest-of the-high-priority chemicals would then merely enter a further limbo:  a review and risk assessment process as a prelude to a "safe use" determination by EPA.

Hardly the quick start I had hoped for.

If the last decade of voluntary programs and ChAMP has taught us anything, it's that it's time to move beyond the endless cycle of having one round of assessment to identify chemicals of highest concern lead to nothing more than a further round of assessment.

The re-energized new leadership at EPA recently took upon itself to identify an initial handful of bad-actor chemicals, for which it is developing action plans to reduce the harm those chemicals are causing.  EPA didn't ask for industry's blessing before listing those chemicals.  Can you imagine what would have transpired had it done so?

Nor should EPA have to provide an opportunity for industry to challenge such listing decisions:  Under Greggs' scheme, any listing of chemicals is pre-regulatory –  indeed, it's arguably pre-pre-regulatory or even pre-pre-pre-regulatory.  The notion that EPA's mere identification of a chemical through such a process should be eligible for challenge by the very companies that make or use the chemical is preposterous – not to mention a recipe for endless delay and fights.

And hey:  Wasn't avoiding all that the motivation behind having a quick-start list in the first place?

Lest you think I'm reading too much into a 5-minute statement at a hearing, I'll point you to a detailed proposal these same three trade associations (joined by a dozen others) gave to California earlier this year, as a "model" for regulations under the state's Green Chemistry Initiative.  By my count, that proposal would provide no fewer than six – 6 – opportunities for industry input into and challenge of the state agency's process for designating and prioritizing a chemical of concern.

Talk about greedy:  In addition to requiring formal notice and comment on any proposed listing of chemicals, that proposal would require another round of notice and comment on the "final" list.  And it would repeat that dual-intervention opportunity at each of several steps in a process that would precede any regulatory action to restrict the use of the chemical.

That makes the federal rulemaking process under the Administrative Procedures Act look like a cakewalk in comparison, even after factoring in the interventions by the Office of Management and Budget called for under Executive Orders and such.

A prominent refrain in the industry's new TSCA hymn book has been to say that EPA needs more authority.  I, for one, would like to hear that tune sung more than just in Sunday choir and have it enter the actual work week.

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2 Comments

  1. Bill Greggs
    Posted November 19, 2009 at 7:21 pm | Permalink

    Richard-

    We continue to appreciate your willingness to engage in a constructive dialogue on modernizing TSCA.

    This post suggests that the consumer products industry wants to see a delay in prioritizing chemicals, assessing safety and taking risk management action where needed. Let me clear up any misunderstanding.

    The quick start idea is intended to provide specific criteria for hazard and exposure that EPA could use to quickly identify and be able to get moving on chemicals of the very highest concern. The criteria we are suggesting have readily available information, would identify 50 to 100 chemicals, and the process could be quickly completed. With such a quick start effort in motion, EPA can turn to prioritizing the rest of the chemicals, using new tools for timely data-call in where sufficient data are unavailable and for timely risk management action where appropriate.

    Delay is not in anyone’s interest—that simply delays rebuilding confidence in the US chemical management system.

    We look forward to continuing to work with you and others on modernizing TSCA to create an international gold standard for chemical regulation and management.

    Bill Greggs

  2. Posted November 24, 2009 at 3:57 pm | Permalink

    Bill: Thanks for your response. And let's definitely keep the dialogue going.

    I'm glad to hear that your intent is not to slow things down. But I think that's not enough if the process you're advocating be used will have that effect. A process that allows industry to challenge every EPA listing decision — in particular, a non-regulatory decision — will inevitably have that effect.

    It must be said that there's a long history of many in the industry using any and all opportunities afforded them to reopen or challenge EPA's decisions. That has real consequences for taxing EPA's resources and sacrificing timely progress.

    Clear criteria need to be specified up front. (I think that ought to be in the legislation itself.) Companies then ought to have an opportunity — indeed, be required — to submit all safety-related data they have on their chemicals, which EPA should be required to take into account.

    But then EPA needs to be allowed to do its job of prioritizing chemicals.

    And, of course (as I'm pleased to see you acknowledge), that's only the beginning of a process that ultimately needs to extend to ensuring adequate data are available on all chemicals in commerce to demonstrate their safety.

    Best,
    Richard

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