Richard Denison, Ph.D., is a Senior Scientist. Allison Tracy is a Chemicals Policy Fellow.
Well, in its comments on EPA's proposed rule to enhance chemical information reporting under the TSCA Inventory Update Rule (IUR), it took the American Chemistry Council (ACC) all of 5 paragraphs to get through the lip service it no doubt felt it had to pay to supporting EPA's proposals "in principle," and then proceed to devote 31 pages to arguments opposing virtually every element of EPA's proposals.
Cunningly on its part, ACC's arguments often do not oppose outright the EPA proposals. Rather, it seeks to put off their implementation for as long as possible. EPA's proposed rule calls for reporting in 2011 that would provide information for years 2006 and forward. In contrast, ACC would have EPA put off implementation of all of its proposed IUR enhancements, with the result that both EPA and the public would not get any of the additional information until at least 2015.
Like we said in the title of this post: Reporting deferred is right-to-know denied.
We'll be posting more about ACC's comments in the coming weeks, but in this post, we'll consider the core argument ACC makes for deferral: that "the business of chemistry is product-focused, not substance focused." ACC would have us believe their member companies don't know what chemicals are in any of the products (i.e., mixtures of chemicals) they make and sell.
This argument warrants – ahem – additional scrutiny.
Of course, it is only through chemical substance-specific information that EPA is able to make informed judgments, assessments and decisions about chemicals in commerce. That's why the Toxic Substances Control Act (TSCA) of 1976 is and has always been chemical substance-specific.
If this proposed TSCA rule were the first time in the history of the universe that EPA had sought chemical-specific information from industry, one might have some sympathy for this argument. But consider the following:
- Reporting under the IUR has always been chemical-specific – and it dates back all the way to 1986. And the threshold for reporting was 10,000 pounds per year per site until the last cycle in 2006, when it was raised to 25,000 pounds.
- The establishment of the TSCA Inventory itself – which is also chemical-specific – dates back even further to a rule EPA promulgated 33 years ago, in 1977.
- Every TSCA regulation EPA has promulgated that addresses chemicals, and every related voluntary program it has run (such as the High Production Volume (HPV) Chemical Challenge) are chemical-specific.
All of these activities, stretching back over more than three decades, have required chemical manufacturers (including importers) to know the specific identity of the chemicals – not the products – they produce or import in order to determine whether the requirements or programs apply to them.
Companies also routinely have to determine their compliance with other federal and state statutes and regulations based on knowledge of their chemicals, not products. The Toxics Release Inventory (TRI), Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, California's Proposition 65, Massachusetts' and New Jersey's use reporting programs – all of them specify chemicals, not products, subject to regulation. While most of these initiatives address releases and are limited to known toxic chemicals, they obviously require intimate knowledge of chemicals being manufactured and processed in order to determine whether and, if so, to which of their chemicals the requirements apply.
Finally, most of ACC's member companies are well along the path toward complying with the European Union's REACH Regulation. They have already pre-registered any of their chemicals they market or intend to market anywhere in the EU, as the deadline for that chemical-specific activity was December of 2008. To determine which registration and data requirements and deadlines apply to them – all of which are chemical-, not product-, specific – those companies have had to match their chemical inventories and production volumes with regulatory provisions.
ACC's argument, which underpins its entire rationale for opposing prompt implementation of EPA's proposed IUR rule, would merely be laughable if it didn't have the potential of derailing for years EPA's effort to get the chemical information it needs to do its job.
Stay tuned for more from us on ACC's and others' comments.