Legislators Set Agenda for Change

The new Administration and Congress promise an eventful new year — It may result in significant changes in direction for regulation of chemicals by the U.S. Environmental Protection Agency (EPA). Here’s a look at possible trends.

Congressional Priorities
Congress will continue to have a significant impact on shaping EPA priorities.  U.S. Sen. Barbara Boxer (D-Calif.) is expected to remain chair of the Environment and Public Works Committee, and continue to press EPA for strong environmental protection. The surprising ascent by Rep. Henry Waxman (D-Calif.) to chair, House Energy and Commerce Committee, signals a significant shift toward more aggressive proposals on energy and environmental protection.

Legislative Priorities
Chemical control legislation will be a priority directly pertinent to chemical manufacturers and processors, but isn’t expected to take center stage until climate change is addressed. There’s already renewed emphasis on chemical testing and control with EPA’s launch of the Chemical Assessment and Management Program (ChAMP) and its two key component parts, the Inventory Reset Program and the Inorganic High Production Volume (IHPV) Challenge Program.

The existing template is the Kid Safe Chemical Act re-introduced in May 2008 by Sen. Frank Lautenberg (D-N.J.) and others. It includes provisions that are unlikely to be in any final legislation. This could change current law to require more testing and use-specific evaluations, and be imposed on new and existing chemicals.

National Nanotechnology Initiative (NNI) Reauthorization legislation also is likely to be revisited very early in the 111th Congress. It passed the House in the 110th Congress and could be reintroduced with perhaps an even greater emphasis on environmental, health, and safety research funding in light of the National Research Council’s negative response to the federal Strategy for Nanotechnology-Related Environmental, Health, and Safety Research.

Regulatory Priorities
The new leadership team likely will seek actions starting in mid-year:  new initiatives concerning tougher enforcement, investments in environmental research, or specific regulatory initiatives.

The Office of Pollution Prevention and Toxics (OPPT) is committed to fulfilling the Security and Prosperity Partnership of North America through the ChAMP, to complete screening-level hazard and risk characterizations and initiate action by 2012 on more than 6,750 chemicals produced at above 25,000 pounds/yr. level. EPA’s commitment to the TSCA Inventory Reset Program and the IHPV Challenge Program may command significant time and resources in 2009 and beyond.

OPPT also will likely focus on nanotechnology. An unprecedented number of regulatory/policy developments pertinent to nanoscale materials arose in 2008. OPPT launched its Nanoscale Materials Stewardship Program, will issue an interim evaluation of the program in March, and a final evaluation in April 2010.

In other areas mostly affecting the Office of Prevention, Pesticides and Toxic Substances, the agenda for change may include:

• Greater emphasis on children’s risks and special caution when regulating their exposure to chemicals or products;

• Results of biomonitoring studies that show exposure to chemicals from uncertain pathways and with limited data about potential risks that result;

• Right to know initiatives to require disclosure of chemical use and release information, product labeling disclosures, pressure to disclose more information currently allowed to be claimed as confidential business information, such as wider and earlier release of production data or toxicological studies;

• More peer review of all proposed decisions to ensure good science, with more emphasis on conflict of interest screening criteria;

• Renewed emphasis on the potential for risk assessment modeling to incorporate potential effects of low-dose exposures;

• Possible effects of chemicals on the endocrine system of humans and animals;

• Toxics use reduction, perhaps wrapped in the cloak of chemical plant security and hazardous material transportation restrictions;

• Initiatives to inform consumers and foster the marketing of greener products, recycling of packaging, reducing the carbon footprints, and the like; and

• Proposed trade agreements to include greater assurance of compliance with environmental standards to help level the playing field for U.S. entities; andgreater belief in international approaches and agreements to attain environmental objectives (e.g., not only to approve the Persistent Organic Pollutant treaty, but use it).

At this early stage, it’s wise to prepare for more regulation and public scrutiny of chemicals.  Readers will benefit from good corporate stewardship, complying with all applicable requirements, maintaining good working relationships with all levels of EPA and their local communities, and engaging constructively with the regulatory authorities.

Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on chemical industry issues. The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.
You can e-mail her at [email protected].