• Insights on TSCA Reform and Chemical Prioritization
  • April 11, 2012 | Author: Peter L. de la Cruz
  • Law Firm: Keller and Heckman LLP - Washington Office
  • The Environmental Law Institute (ELI) recently published a panel discussion on the Toxic Substances Control Act Reform and chemical prioritization. As an ELI panel participant, Keller and Heckman partner Peter de la Cruz offered his insights into one of the issues critical to successful reform of the Toxic Chemicals Control Act - chemical prioritization. Peter offered four key observations related to the prioritization of chemicals.

    First, there already exist some criteria for prioritization within the current TSCA provisions. The Interagency Testing Committee (ITC), for example, prioritizes chemicals for its semiannual reports based on a number of factors including evidence of carcinogenicity, mutagenicity or teratogenicity; cumulative or synergist effects; persistence and bioaccumulation potential, among others. With EPA's recent rediscovery of the ยง5(b)(4) "chemicals of concern list," this also reminds us that prioritization can include consideration of significant human health effects, human exposure, and environmental effects.

    Second, Peter provided some examples of what EPA has prioritized chemicals for review over the years. One recent activity illustrating this is the use of production volume as a mechanism for prioritizing data collection under the voluntary High Production Volume Challenge Program. In a tripartite agreement, industry provided substantial health and safety data to EPA on chemicals selected solely because they were manufactured in the US at greater than a million pounds per year. Additional prioritization factors can be ascertained from EPA's recent Chemical Action Plans, which relied on factors such as presence in the environment or in human tissues, widespread use in consumer products, PBT (persistent, bioaccumulative, toxic) properties, and potential for special exposure or toxicity to developing children.

    In his third observation Peter looked at the August 2011 prioritization proposal by EPA, which was used to identify the chemicals to be given priority evaluation in the EPA "work plan" published in early 2012. Many of the same prioritization factors as noted above were used, as were additional factors such as specific reproductive and developmental toxicity potential for children, presence of chemicals on other prioritization lists, and presence in consumer products, in particular children's toys and clothes.

    Additionally, Peter noted that there are two prioritization factors not mentioned by EPA: the adequacy of existing regulations and the adequacy of existing data on both exposure and hazard. He suggests that while EPA staff is competent and well-intentioned, it is good practice for the Agency to make explicit that it will take into account the scope of existing regulation and the adequacy of the data where risk can be more closely defined or defined with less certainty."

    Peter suggested that EPA learn from the progress made by others, for example, the significant amount of health and safety data compiled by the European Union under the REACH program, as well as the prioritization efforts of Canada and by a number of states. Finally, Peter strongly encouraged the Agency to be clear in their communication that prioritization is simply a tool to make the evaluation of chemicals more manageable and not reflective of any decision regarding their safety. The concern is that insufficient attention given to communication could lead to prioritization becoming a "deselection list," which is neither the intent of EPA or the TSCA statute.

    The ELI panel discussions have been published in the April issue of the ELI journal as "Toxic Substances Control Act Reform: Chemical Prioritization." The issue is available below with permission of ELI.