EPA deserves an “A for Effort” for its new Chemical Action Plans

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

Just squeaking in under its self-imposed deadline, late on December 30 EPA issued the first batch of chemical action plans it has promised under its enhanced chemical management program.  In doing so, EPA has signaled its intention to do all it can using its existing authority under the Toxic Substances Control Act (TSCA) – even as it also makes clear that authority is “both outdated and in need of reform.”  To my ear, that strikes just the right balance.

The first four action plans address the following chemicals:

• Long-chain perfluorinated chemicals (PFCs)
• Penta, octa, and decabromodiphenyl ethers (PBDEs) in products
• Phthalates
• Short-chain chlorinated paraffins (SCCPs)

There’s a lot of detail to digest in the individual plans, and I expect we’ll have more to say about them going forward.

But for those of us not used to EPA so closely juxtaposing the words “chemical” and “action,” the plans are notable for including steps – many of which EDF has called for in the past – that go beyond the formulaic “we’ll-further-assess-and-consider-asking-for-more-testing” EPA dictum that was applied in the past to just about any chemical that raised a red flag.

Among the more novel actions EPA plans to pursue (though not all of them for all four chemicals):

• add the chemicals to the Toxic Release Inventory (TRI), which would then require annual reporting of releases;
• undertake enforcement actions against makers of chemicals being produced in violation of TSCA’s new chemicals provisions that require the submission of premanufacture notifications (PMNs) for any chemical not listed on the TSCA Inventory;
• develop Significant New Use Rules (SNURs) for any of the chemicals no longer in production, or for any expanded uses of the chemicals that are in production, or expand the scope of current SNURs to include articles made using such chemicals; these steps would require producer notification and EPA review prior to any such production or use;
• formally place the chemicals on a Concern List, using a never-before-used TSCA provision (Section 5(b)(4)) that allows EPA to identify – and thereby signal to the public and the market – chemicals that “may present an unreasonable risk to human health or the environment” (It is interesting to note that EPA had actually proposed this step in early 2008 under its ChAMP initiative, but it died a quiet death after the chemical industry objected); and
• enroll such chemicals in EPA’s own Design for Environment and Green Chemistry programs to accelerate the search for safer alternatives.

These actions are planned in addition to the more traditional routes of developing reporting and testing rules under Sections 4 and 8 of TSCA.  And they may allow at least some risk management controls to be imposed even if EPA fails in its ambitious proposals to consider trying to restrict or ban the chemicals under the notorious Section 6 of TSCA.

An “A for effort” certainly seems appropriate.

How will the chemical industry respond?

Now that EPA has issued its first batch of chemical action plans, we have an opportunity to see whether the chemical industry will put its money where its mouth has been of late:  Will it act as though it really believes what it’s been saying about EPA needing greater authority under TSCA and allow these modest proposals to go forward?  Or will it fight them tooth and nail as has been standard practice?

The early indication is not good:  Last week, the American Chemistry Council (ACC) issued a press release condemning EPA’s release of the action plans.

Among ACC’s complaints is that EPA hadn’t provided a basis for selecting the chemicals targeted under the plan.  ACC claims that “the initial set of chemicals seem [sic] to have been selected based on little more than their current ‘high-profile’ nature.

Yet back when it announced its enhanced program, EPA pretty clearly stated the basis for selecting the first group of chemicals:

The initial chemicals selected for action plan development were chosen on the basis of multiple factors, including chemicals identified as persistent, bioaccumulative, and toxic; high production volume chemicals; chemicals in consumer products; chemicals of particular potential concern for children’s health because of reproductive or developmental toxicity; chemicals subject to review and potential action in international forums; chemicals found in human blood in biomonitoring programs; and chemicals in categories generally identified as being of potential concern in the new chemicals program.

Sounds like a pretty clear set of selection factors to me, one that goes way beyond ACC’s claim.  And that’s only the start:  each individual plan provides substantial documentation as to why EPA selected the chemical, including detailed hazard and exposure data.

I hope it’s too soon to conclude that ACC’s new-found rhetoric on the need to enter a new era of chemicals regulation is nothing more than words.  The next few months should tell.