INSIGHT: Major turning point for US chemical controls

02 April 2009 17:22  [Source: ICIS news]

By Joe Kamalick

WASHINGTON (ICIS news)--This year will likely stand as a major turning point for the US chemicals industry as Congress decides whether to update the nation’s risk-based substance control programme or pitch in with Europe and the precautionary principle.

As Joe Acker, president of the Society of Chemical Manufacturers and Affiliates (SOCMA), put it, the question is whether Congress can modernise US chemicals controls “without disturbing the delicate balance between protection of human health and the environment, and sustaining a vital industry and its customers”.

Hearings have already begun and stakeholders are marshalling arguments and allies toward revision - and perhaps wholesale replacement - of the US Toxic Substances Control Act (TSCA).

That statute has not seen major revision since first enacted in 1976, and there are many in Congress that want to see it scrapped altogether and replaced with a US version of the EU programme for registration, evaluation and authorisation of chemicals (Reach).

In testimony before Congress, Richard Denison, senior scientist at the Environmental Defense Fund (EDF), urged a major overhaul of TSCA, arguing that the 33-year-old statute does not give the Environmental Protection Agency (EPA) adequate authority to force comprehensive testing of new chemicals or those already in commerce.

TSCA, said Denison, “imposes an essentially un-meetable burden on EPA to prove actual harm in order to control or replace a dangerous chemical and thereby perpetuates the chemicals industry’s failure to innovate toward inherently safer chemical and product design”.

He called on Congress to adopt principles of the EU’s Reach plan to identify and control all chemicals of concern and to “shift the burden of proof from government to show harm, to industry to demonstrate safety”.

The “Kid-Safe Chemicals Act”, legislation introduced last year by Senator Frank Lautenberg (Democrat-New Jersey) and likely to be recast in this Congress, essentially would clone Reach and enshrine the precautionary principle as the new basis for substance control in the US.

As Lautenberg has said, the measure would “shift the burden for proving chemicals are safe from EPA to the chemical manufacturers”.

Under the bill, manufacturers of the some 80,000 chemicals in commerce would have to provide EPA with data necessary to determine if a chemical is safe. The EPA would have authority to bar the production or import of substances that fail to meet safety standards or for which there is insufficient safety data.

The safety of all industrial chemicals would have to be demonstrated by industry under EPA review within 15 years.

The agency also would be authorised to require additional testing of chemicals proven safe for commerce if new science or testing methods become available.

Any chemical suspected of causing human health problems and detected in human cord blood “would be immediately targeted for restrictions”, according to Lautenberg.

For SOCMA’s Acker, such “sweeping revisions could prove highly detrimental to Americans’ way of life”.

“A complete overhaul, as proposed by the Kid-Safe Chemicals Act, could also delay the introduction of new products and hasten the move to offshore manufacturing,” Acker said.

In a policy statement on TSCA reform issued this week, Acker noted that: “Since TSCA was enacted in 1976, the US chemicals industry has developed roughly 22,000 new chemicals. This number dwarfs that of any other industrialised country.”

Charlie Drevna, president of the National Petrochemical & Refiners Association (NPRA), also has cautioned that a Reach-style approach to chemicals control would impede technical and product innovation.

“Little more than a decade ago, the EU decided to require companies to conduct toxicity and environmental fate testing before a chemical could enter the marketplace,” Drevna said, saying the requirement “has inhibited the development of products in Europe that could enhance health and the environment”.

He cited the number of new chemical patents issued in Europe over the last decade, some 2,000, compared with approximately 13,500 chemical patents issued in the US over the same period.

“Pursuit of a programme like Reach, taken on with the best of intentions for human health and safety, could very well impair health and safety by denying critical products entry into the marketplace,” Drevna said.

Acker argues that modernising TSCA need not demand an either/or choice between innovation and public safety.

“This is not to say that innovation precludes protection of human health and the environment, or that TSCA does not necessarily require revision,” he said.

“But it does mean that an appropriate balance needs to be maintained when considering a revised approach to chemical risk management,” he added.

Further, he argues, since the EU has already put Reach in place and chemical producers worldwide are proceeding with the related data registration process, there is little point in the US copying the European model at the risk of smothering US innovation and product development.

“Vast amounts of test data collected under Reach will become available to EPA; there is no need to establish a duplicate process in the US,” he said.

SOCMA is part of a broader coalition - still being assembled - that is expected to issue within weeks detailed guidelines for modernisation of TSCA as a risk-based regulatory programme.

That coalition, as yet unnamed, will include industries upstream and downstream of chemicals for a combined appeal to Congress to not throw the baby out with the bathwater.

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By: Joe Kamalick
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