EPA TSCA Revision: Casey at Bat

This week, DuPont publicly supported a bipartisan update to the Toxic Substances Control Act or TSCA. This comes only hours after the Chemical Safety Improvement Act was introduced by Senators Frank R. Lautenberg and David Vitter and numerous Republican and Democrat cosponsors.

Swinging for fences… or benches?

The latest attempt to reform chemical management in the United States is not a grand slam home run for the reform team. It’s definitely a compromise compared to the Safe Chemicals Act update that Lautenberg proposed about a month ago. This is called the “Chemical Safety Improvement Act of 2013.” And guess what? The chemical industry likes it! Hey Mikey!

Ken Cook, president of the Environmental Working Group, says the compromise bill fails to give the US Environmental Protection Agency (EPA) firm deadlines or enough funding to review potentially harmful chemicals, and that it doesn’t do enough to protect children and other at-risk populations. The provisions, he said, “make sense for the chemical industry, not kids.”

But Richard Denison, senior scientist at the nonprofit Environmental Defense Fund, has a different point of view. “While this bill isn’t perfect,” he said, it’s a policy and political breakthrough and opens a bipartisan path forward to fix a law that needs a major overhaul.”

Denison went on to say that The Tribune series was a big wake-up call for America, and “there are costs to be paid for a broken system.”

Chemical Safety Improvement Act of 2013 is here. It came suddenly, a surprise to many. It may not be the sweeping reform some environmentalists were hoping for. But what it does have is bipartisan support, which is refreshing to say the least.

As explained by the Washington Post, the Lautenberg-Vitter “Chemical Safety Improvement Act of 2013? would give the EPA new tools such as:

  1. The EPA would review all actively used chemicals and label them as either “high” or “low” priority based on their potential risk to human health and the environment. The agency would then subject high-priority chemicals for further review
  2. Regulators would no longer have to go through a long, protracted rule-making process to get information from companies about their chemicals
  3. The EPA will also have greater flexibility to take action on chemicals deemed unsafe, ranging from labeling requirements to outright bans on things like asbestos

Heavy hitters  “DuPont strongly supports TSCA modernization, and we believe that successful reform requires this sort of bipartisan approach,” said Vice President and Chief Sustainability Officer Linda J. Fisher.

Cal Dooley, president of the American Chemistry Council, commented that this “constructive, balanced proposal” wasn’t perfect, but was a step up.

This may not be bases loaded with Casey at the bat, but even a solo home run would be better than a never-ending partisan stalemate tied at zero. There’s reason for enthusiasm. But, in the words of Joe Walsh, we’ll be taking it play by play.

New TSCA Reform Bill from Lautenberg

U.S. chemical law reform has the best chance to pass as we’ve seen since 1976.

Senator Lautenberg has not been in great health these past few months. His detractors in the US Senate, in powerful lobbies— and just in principle— seem to be softening a bit. We are witnessing the final months of the final term of one of the most legendary public servants in United States history. Whether you love him or prefer to dine at a different table, such a long and passionate career will certainly garner at least some of the respect it deserves. Not that Lautenberg is looking for respect. He’s looking for legacy: he wants to see chemical legislation reform happen in America, no matter what.

In what could be a final bid to make it happen, the Senator has introduced a new version of a bill that would update the Toxic Substances and Chemicals Act (TSCA). It is identical to the legislation that was sponsored by 30 Senators and reported favorably out of the Environment and Public Works Committee in the 112th Congress. Compared to earlier versions of the legislation, it includes a number of significant changes that reflected input from a broad range of stakeholders including federal agencies, state governments, the chemical industry, and public health advocates.

An update is something that almost everyone agrees must happen, from tree-huggers to the ACC to 77% of the US population. The disagreement, as ever, is in the specifics of the bill. TSCA reform is always held up on minutiae and absolutely nothing ever happens. However, with sentiment rising in favor of the august public servant, now is as likely a time as we’ve seen in the past 12 years to consider TSCA reform a real legislative possibility.

Under TSCA, EPA’s ability to protect human health and the environment from harmful chemicals is severely limited. These legal restrictions are so burdensome that, of the more than 84,000 chemicals on the inventory, EPA has been able to require health and safety testing of about 200, and banned only five, since TSCA was enacted in 1976.

Americans and even industry overwhelmingly support legislation to reform TSCA. Recent polling shows strong bipartisan support across the country, as well as strong support from small business owners.

— 77% of Americans support TSCA reform, says a recent poll by Republican firm Public Opinion Strategies
— 75% of small business owners support stronger regulations on toxic chemicals

The Safe Chemicals Act of 2013 addresses each of the core failings of TSCA. To read the specifics of the issues it addresses, please refer to the summary or to the actual bill as proposed.

OSHA’s Public Cadmium Poisoning Assessment Tool

As of today, January 2, 2013, the US Environmental Protection Agency (EPA) is withdrawing the final Toxic Substances Control Act (TSCA) Rule that was issued on December 3, 2012 regarding cadmium. The rule being withdrawn would have required some manufacturers of consumer goods containing cadmium to report on health and safety data to EPA. 

In an unrelated move but worth mentioning, some factions of the U.S. government (led by OSHA*) have developed and made available a tool for cadmium poisoning mitigation. The idea is that you interview someone who may have been dangerously exposed to cadmium. You enter their answers into the tool, called the OSHA Cadmium Biological Monitoring Advisor.

The data you enter, simple answers to simple questions, is rationalized, then crunched against known data points and thresholds for cadmium exposures of various types. Instructions for quickly and rightly mitigating any toxicity related damage are provided instantly.

Technically, the tool exists to address the federal monitoring and surveillance requirements of the general industry Cadmium Standard (summary can be found here). But if you feel you or an employee may have been overexposed to cadmium, read on.

The OSHA Cadmium Biological Monitoring Advisor. The tools works by prompting the user with key questions and relying on data from biological monitoring tests to determine an appropriate course of action. This Advisor analyzes biological monitoring lab results for currently exposed workers. It determines the biological monitoring and medical surveillance requirements of the general industry Cadmium Standard, 29 CFR 1910.1027, applicable to those results.

Technically, the tool is designed for experienced medical professionals, but it is also available to workers and the general public. There’s no requirement for using the OSHA Cadmium Biological Monitoring Advisor. The results presented by the tool are, obviously, critically dependent upon the accuracy of the input data.

If you have any questions or concerns, OSHA asks that you contact them directly or find the advice of an expert.

There are subtleties to the restrictions around industries regarding cadmium exposure. For instance:
For general industry, an employer has 30 days to reassess the employee’s occupational exposure to cadmium. For the construction industry, there’s no time limit to reassess occupational exposure. (The logic of this escapes me, perhaps someone can clarify in the comments section.)

Similar rule notes can be found here: a few subtleties.

Cadmium poisoning sites and signs.  In its elemental form, cadmium is either a blue-white metal or a grayish-white powder found in lead, copper, and zinc sulfide ores. However, most cadmium compounds are highly colored from brown to yellow and red. Cadmium’s uses vary from an electrode component in alkaline batteries to a stabilizer in plastics.

OSHA estimates that approximately 70,000 employees in the US construction industry are potentially exposed to cadmium. Specifically, OSHA asks employers to establish regulated areas whenever the following construction activities are conducted:

  1. Electrical grounding with cadmium welding
  2. Cutting, brazing, burning, grinding, or welding on surfaces that are painted with cadmium-containing paints
  3. Electrical work using cadmium-coated conduits
  4. Using cadmium-containing paints
  5. Cutting and welding cadmium-plated steel
  6. Brazing or welding with cadmium alloys
  7. Fusing of reinforced steel by cadmium welding
  8. Maintaining or retrofitting cadmium-coated equipment
  9. Wrecking and demolishing where cadmium is present

Symptoms of cadmium poisoning are listed here.

Start using the tool here: OSHA Cadmium Advisor.* Groups who made the Advisor Tool available: Occupational Safety and Health Administration of the Department of Labor (OSHA), along with the Office of the Solicitor of Labor (Who?) and the Office of the Assistant Secretary of Labor for Policy (OASP)

EPA Penalties for Wrong Chemical Data Reporting

The U.S. Environmental Protection Agency (EPA) has issued complaints seeking civil penalties against three companies for alleged violations of chemical reporting and record-keeping requirements. The requirements, under the Toxic Substances Control Act (TSCA), require companies to submit accurate data about the production and use of chemical substances manufactured or imported during a calendar year.

Chemical Data Reporting (CDR) penalties
These violations in particular involve failure to comply with EPA’s TSCA section 8 Inventory Update Reporting (IUR). The gist of the TSCA section 8 update is related to production volumes of chemicals, adjusted last November 2011. The larger IUR is well-explained here.

Under the TSCA penalty structure as it stands, penalties can be assessed up to $37,500 per day, per violation.

Formerly known simply as the IUR, the rule is now called the “TSCA Chemical Data Reporting Rule.”  Of course, that’s been abbreviated,  now it’s known just as CDR in most circles. As always, have your acronym machete handy when approaching EPA materials. Again, details can be found in section 8 of the larger TSCA.

CDR reporting deadlines and transgressions 
The reporting deadline for the 2006 IUR rule ended in March of 2007 — EPA’s enforcement efforts have led to 43 civil enforcement actions and approximately $2.3 million dollars in civil penalties against companies that failed to report required chemical data information.

By the way: the reporting deadline for the CDR 2012 submission period is August 13, 2012.

The three most recent cases where EPA is complaining of a trangression are against Chemtura Corporation, Bethlehem Apparatus Company, and Haldor Topsoe, Inc., and resulted in penalties totaling $362,113.

The Chemtura Corporation – $55,901. The company corrected the violations, paid the penalty and a final order was issued by the Environmental Appeals Board (EAB) on June 25, 2012.

Bethlehem Apparatus Company – $103,433. The company corrected the violations and paid the penalty.

Haldor Topsoe, Inc. – $202,779. The company paid on July 2, 2012.

It will be interesting to see if enforcement continues, and whether it trends towards higher fines or not.  Chemical data reporting is poised to become the next great challenge (and, arguably, competitive advantage) for American companies — which is why technology market watchers paid such attention to software for chemical ingredient disclosure earlier this year.

More information about TSCA reporting requirements and penalties is online, at the EPA website.

EPA’s New Rule Requires Electronic Reporting

Time to buff up your stuff — meaning your data archives and processes.  The U.S. Environmental Protection Agency (EPA) has announced a proposed rule to require electronic reporting for certain information submitted to the agency under the Toxic Substances Control Act (TSCA).  Now’s the time to get data management under control so reports aren’t being fired off from your internal ops over to EPA willy-nilly.
You’ll recall last year when a similar rule was launched.  EPA set up a page for that rule called Requirements for Submitting Electronic Pre-manufacture Notices (PMNs).
Today’s proposed rule would require electronic reporting rather than paper-based reporting for various TSCA actions including submission of information relating to chemical testing, health and safety studies, and other information. When final, EPA will only accept data, reports, and other information submitted through EPA’s Central Data Exchange, a centralized portal that enables streamlined, electronic submission of data via the Internet.
EPA will be soliciting comments on this proposed rule for 60 days.  
Fact is, though, digital reporting is the way of the future.
For more information on the proposed rule: http://www.epa.gov/oppt/chemtest/
For more information on OPPT’s increasing transparency efforts: http://www.epa.gov/oppt/existingchemicals/pubs/transparency.html

TSCA Update: New Chemical Reporting for 2012

Last week the US Environmental Protection Agency held a training session to further explain the amendments to the Toxic Substances Control Act (TSCA), scheduled for 3 hours this afternoon.  For those who couldn’t make it, here’s the distilled version:

For starters, there is a section 8(a) Inventory Update Reporting (IUR) rule change in name, to the Chemical Data Reporting (CDR) rule.  The new name is more precise, we appreciate that.   “Inventory” is a softer word than “chemical” but it has also far too broad an implication in the industrial world.

EPA is promulgating several amendments to the IUR / CDR rule, taking into consideration comments received on the proposed rule.  The amendments were proposed in the Federal Register issue of August 13, 2010.

In short, the way Production Volumes are reported will change:


Who is affected? Businesses are affected by this action if they manufacture (including manufacture as a byproduct or import) for commercial purposes chemical substances listed on the TSCA Inventory and produced in volumes of 25,000 lb or more during the principal reporting year (i.e., calendar year 2011).

Potentially affected entities likely include but are not limited to:

  1. Chemical substance manufacturers and importers (North American Industry Classification System (NAICS) code 325 and 324110; e.g., chemical substance manufacturing and processing and petroleum refineries)
  2. Chemical substance users and processors who may manufacture a byproduct chemical substance (NAICS codes 22, 322, 331, and 3344; e.g., utilities, paper manufacturing, primary metal manufacturing, and semiconductor and other electronic component manufacturing)

In short:  manufacturers — including importers — of TSCA Inventory-listed chemical substances with a 2011 production volume of 25,000 lb or greater at a site, unless otherwise exempted.

The 2012 submission period is Feb. 1 to June 30, 2012. You need to know:

  • Reporting is site-specific
  • Reporting standard is “known to or reasonably ascertainable by” for all data
  • CBI – upfront substantiation required for:
    • Site and chemical identity claims
    • Processing and use information claims [new requirement]

Manufacturing-related data includes:

  1. Chemical identity
    1. CAS RN and chemical name
    2. Accession number and generic chemical name for CBI substances
  2. Production volume (PV)
  3. Number of workers that are reasonably likely to be exposed (in ranges)
  4. Maximum concentration
  5. Indication of whether a manufactured chemical substance is being recycled, remanufactured, reprocessed or reused
  6. Physical form and percent production volume in the form
  7. Processing and use-related data are required for production volumes of 100,000 lb. or more, at a site, unless otherwise exempted

Online web based software can help with the new reporting requirements.  EPA has offered up a web based portal of similar nature.

*chart courtesy EPA CDR training info


ACC-tung Baby: New Tool For TSCA

Pressure to modernize TSCA is mounting from all sides, and the American Chemistry Council (ACC) is offering a tool that agencies can use to do something about it.  The ACC is proposing a chemical prioritization system that it believes could be used by the Environmental Protection Agency (EPA) to determine which chemicals warrant additional review and assessment.

Achtung means “Pay attention” in German, and the world is indeed paying attention to TSCA reform.

ACC President and CEO Cal Dooley said as part of the new tool’s announcement, “As outlined in ACC’s principles for modernizing the Toxic Substances Control Act (TSCA), establishing a clear and scientifically-sound prioritization process is key to creating a world-class chemical management system.”

The 35-year-old TSCA law does not dictate a process to utilize the information currently available to prioritize chemicals for review.  ACC’s approach offers one way to evaluate chemicals against transparent, consistent and scientific criteria that take into account both hazard and exposure. In this system, chemicals are given a score based on certain criteria and then ranked based on both:

  1. scores, and
  2. the agency’s best professional scientific judgment

Those rankings would then be used to determine which chemicals should be referred to EPA’s Office of Chemical Safety & Pollution Prevention for further assessment.

Conflict of interest? The obvious problem with ACC contributing a chemical prioritization tool to EPA lies in seemingly inevitable conflicts of interest where an industry-backed association has a stake in evaluating its own products (in this case chemicals) for the marketplace.

ACC says its prioritization tool is not intended to produce conclusions about which chemicals necessarily present a risk to human health or environment. The tool is, apparently, just a gift, simple as that.

EPA’s stakeholder meeting on prioritization. On Sept. 7, before the announcement, representatives from ACC met with officials at EPA to discuss the tool in conjunction with the agency’s stakeholder dialogue on prioritization.

[EPA is opening an online discussion forum for comment from hrough Sept. 14 to get input on the prioritization factors and data sources the Agency plans to use to identify priority chemicals for review and possible risk management action under TSCA.  Participate here.]

“We are glad that EPA has recognized the urgent need to prioritize chemicals for review,” said Dooley. “ACC welcomes the opportunity to participate in [this] dialogue and hopes EPA will utilize our concepts to develop a consistent and transparent prioritization process.”

For more and for reference, see: www.americanchemistry.com/Policy/Chemical-Safety/Chemical-Safety-Regulations


6 Principles of US Import Protocol

Unsafe imports can mean many different things.  Just ask my colleague Chris, who purchased a set of inexpensive deck-chairs made in a foreign country.  Those were unsafe.  You can imagine the rest.

Unsafe imports were on the minds of US Agency heads last week, and they weren’t talking deck chairs per se but about the larger safety issues associated with import/export.  Senior leaders from 10 federal agencies met in Washington, D.C. on Oct. 21 .  There, they addressed past, current, and future efforts to protect the health & safety of both the American consumer and the environment from unsafe imports.  Participating agencies are listed at bottom of this post.

Import / export of chemical substance. Risk Managers have a tough time of it.  Consider import and export laws regarding chemical management.  In 2008, EPA published the Compliance Guide for Chemical Import Requirements under the Toxic Substances Control Act or TSCA.  Short version is that EPA regulates certain chemical substances and mixtures under the Toxic Substances Control Act (TSCA), including chemical import and export.

The United States Customs and Border Protection monitors chemical imports regulated under TSCA section 13. Custom and Border Protection rules (19 CFR 12.118 to 12.128 and 127.28) (also: 40 CFR 707.20) require certification from the importer such as:

  1. positive certification — the shipment complies with TSCA and all applicable rules and orders
  2. negative certification — the shipment is not subject to TSCA

TSCA section 13 certification applies to TSCA sections 5, 6, and 7.  In addition, importers may have obligations under TSCA section 4, which covers testing, and/or section 8 which covers reporting and record-keeping.  In terms of exporting chemicals, TSCA Section 12(b) and 40 CFR Part 707 requires EPA to notify importing countries of the export of chemicals or mixtures if they are subject to certain rules and orders; also requiring notification are certain products containing PCBs or asbestos.
Six general principles of import safety in America. The agency leaders affirmed their commitment to import safety by agreeing to six key principles thereof.  These six principles provide a foundation for further collaboration between participating agencies.

EPA pointed out that all participating agencies are in some way charged with protecting American consumers from unsafe imports.

The six principles of import safety — as agreed to by 10 U.S. federal agencies — are:

1.     The creation of an interagency forum of senior representatives dedicated to import safety cooperation

2.     Continued commitment to information sharing across federal agencies involved in import safety concerns

3.     Enhanced efforts to help the private sector comply with import safety requirements

4.     Development of common systems to exchange information

5.     Strong, consistent enforcement measures to deter imports of unsafe products

6.     The use of risk-management strategies to streamline lawful trade

Goal: to achieve the common mission of protecting American consumers from unsafe imports.

Participating agencies. The new group includes executives from:

  • The U.S. Environmental Protection Agency
  • Department of Homeland Security
  • U.S. Customs and Border Protection
  • Immigration and Customs Enforcement
  • Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE?)
  • Animal and Plant Health Inspection Service
  • Consumer Product Safety Commission
  • Food and Drug Administration or FDA
  • Food Safety and Inspection Service
  • National Highway Traffic Safety Administration
  • National Marine Fisheries Service

It’s quite a lineup.  Will be interesting to see what comes of it.