Environment & Regulations

Centrifugal force

The initiative on chemicals legislation is moving away from the centre on both sides of the Atlantic. Sean Milmo reports

Centralisation of the regulation of chemicals seems to be going out of fashion in the US and the EU as the central authorities are unable to exercise sufficient political clout to draw up new regulations or give added strength to existing legislation. Instead, political power over chemicals is increasingly being exercised at state or, in the case of Europe, national level.

In Europe, the EC is being outflanked by individual member states (MSs) intent on following their own strategies on chemical safety in specific areas. In the US, meanwhile, paralysis at the centre stems mostly from disagreement on what to do about the reform of the 1976 Toxic Substances Control Act (TSCA), which remains the country's main regulatory vehicle for federal control of chemicals.

All parties accept that TSCA needs to be reformed, but they cannot agree on how. Environmentalists and health and safety groups want priority given to combatting toxic chemicals of high concern, particularly those persisting in the food chain, more health and safety information on chemicals and better testing and evaluation methods. Industry wants a new TSCA to focus on the safety of chemicals for their intended use, with the EPA concentrating more on determining levels of safe exposure.

Democrats and NGOs tend to support the Safe Chemicals Act, which is currently being debated by Congress, as it incorporates the reforms to TSCA they want. Republicans, like the industry oppose it and their control of the House of Representatives makes it unlikely that the act will be approved.

Campaigners have bitterly criticised the industry, led by the American Chemistry Council (ACC), for delaying TSCA reform. However, ACC president Cal Dooley stresses the importance of regulations that are "clear and effective, so the mutual goals of protecting health and the environment and preserving the chemical's industry ability to innovate, compete and create jobs can be achieved in a way that will support our country's overall well-being".

Mainly prompted by the impasse at the centre of government over the reform of TSCA, many US states have passed regulations of their own on the safety of chemicals. They have also been responding to new scientific evidence on the potential dangers of specific chemicals and to public pressure for measures to protect human health and the environment from high risk chemicals.

In evidence to a hearing on the Safe Chemicals Act in November, a group of state environmental commissioners told the Senate Committee on Environment & Public Works (EPW) that 30 states has so far passed chemical policy laws. These include comprehensive chemical programmes, bans on specific chemicals of high concern and resolutions calling for TSCA reform.

Some states have introduced laws restricting the use of bisphenol A. In addition to banning it in baby bottles and children's cups, Massashusetts has declared formaldehyde and hexavalent chromium to be high risk chemicals. And in June, New York State legislators banned the chlorinated flame retardant TCEP, which is used in automotive cushioning and furniture foam and is a possible human carcinogen.

The Safe Chemicals Act is currently being debated in the US Congress

Most of the chemicals management legislation approved by state legislatures have gained broad bipartisan support, despite Republicans' traditional scepticism about such regulations. A recent study on states-initiated action on toxic chemicals sponsored by the NGOs Safer States and Safer Chemicals, Healthy Families found that an average of around 75% of Republican legislators in most states passing such regulations voted for them. The major exceptions were California (30%) and Iowa (under 10%).

"As we better understand the consequences of human or environmental exposure to certain toxic chemicals, we in the states face a tough choice," said Ted Sturdevant, director of the ecology department at Washington State, at the EPW hearing. "Either we tackle those chemicals with imperfect tools and inadequate resources or we look the other way."

Although Washington and other states have acted, Sturdevant added, "a federal system that works" would be a better option still. "The current system doesn't work for anyone. I shouldn't have to spend my resources on Washington-specific efforts that are better made at the national level."

Much of the chemicals sector and some of its customer industries are unhappy about the increasing number of states which are bringing in regulations. "This proliferation of chemical regulations by states is beginning to pose real difficulties for our businesses, because it undermines the coherence of nationwide operations," says one industry source.

Robert Matthews, representing the Consumer Speciality Products Association (CSPA), whose members include the Procter & Gamble and SC Johnson, argues that the proliferation of state legislation has "created a patchwork of requirements for evaluating, assessing and managing chemical use - making it extremely difficult and costly for companies to market products in all 50 states".

CSPA members want a modernised federal TSCA statute, according to Matthews. "It is essential for the US chemical management system to keep pace with global developments and for our government to resume its role as a global leader in chemical regulatory policy on behalf of all US citizens and US industry," he told the Senate Committee.

Even a reform of TSCA may not quell the enthusiasm among states for imposing their own controls on chemicals, as scepticism grows about the competence of the politicians in Congress. Dooley, himself a former long-serving member of the House of Representatives, remarked at a recent national meeting of toxicologists at Aspen, Colorado that "there seems to be an unspoken prerequisite that to serve in Congress you must know little or nothing about science".

Safer Chemicals, Healthier Families is leading the NGO charge for TSCA reform

Industry and NGOs have also lost faith in federal agencies such as the EPA, particularly after severe cuts in its budget furthered weakened its authority. Richard Dennison, a senior scientist at the Environmental Defence Fund has complained that the EPA has been reduced to Google searches to try to identify all uses of chemicals "because it lacks authority to ensure accurate reporting of chemical uses".

Three Republican senators complained in a letter to the White House in October about "the apparent collapse in the quality of scientific work being conducted at our federal agencies, specifically with regard to data quality, integrity of methodologies and collection of information".

Individual states are now worried that once TSCA is reformed there may be moves to restrict their regulatory powers on the safety of chemicals. This would be resisted both by Republicans who strongly support an expansion in state rights and by Democrats who believe that by having scope to exercise their own controls states can develop innovations in chemicals management.

Despite 35 years of TSCA, Sturdevant contends, "the states have been the leaders and innovators in protecting our citizens and their environment. Had states not been able to act, we'd be stuck with an antiquated, ineffective system. Even if you pass strong TSCA reform today, we still need the authority to do our jobs and confront the unanticipated challenges of the future that TSCA may not address."

In the EU, meanwhile, individual MSs also want more independence in the control of chemicals. In the wake of growing scepticism about the viability of the EU, which has triggered calls from politicians for curbs on the EU budget, the EC, which is the only body able to introduce EU legislation, has been reluctant to introduce new legislation or even expand the scope of existing regulations. Consequently, in areas where the EC is unwilling to bring in new legislation, MSs are pressing ahead with their own.

In the packaging supply chain, for example, there have been major worries about the migration of chemicals from inks on the packaging materials into packaged food products. The EC decided that existing EU legislation was sufficient to deal with the problem. However, the government of Switzerland, which is not an EU member, brought in its own regulation - the Swiss Ordinance - on packaging ink chemicals which has since become an unofficial European standard.

Swiss legislation on packaging ink chemicals has driven change in other nations

Recently, studies showed a new risk of traces of mineral oils from recycled paper, migrating from cardboard packaging into foodstuffs. Again, the EC declined to take regulatory action. As a result the German government is planning to bring in its own legislation based on the Swiss Ordinance but focused specifically on mineral oil migration. It claims that German national legislation is necessary because of the absence of regulatory action by the EC.

The German initiative could be followed by regulatory proposals by other EU countries, such as the Netherlands and Scandinavian states. Ink producers and their chemical suppliers have warned about the dangers of a proliferation of national standards in Europe creating operational difficulties within the food packaging chain.

In the debate on a new EU regulation on control of biocides, which is currently going through the final stages of approval, MSs have been pressing for a system under which new biocides would be authorised by individual countries. The European coatings producers' trade association, CEPE, has warned that a decentralised system of permits for biocides would be "costly and time-consuming".

Sweden, for example, which has been calling for the right to bring in its own restrictions on individual biocides, has prohibited antifouling paints containing high concentration of zinc oxide (ZnO) despite the EU concluding that ZnO should not be categorised as a biocide. Its Chemicals Agency, Kemi, has conducted studies showing that zinc oxide has a chemical, as well as physical, biocidal action mechanism when used in anti-fouling coatings.

A Kemi official stated that paints containing ZnO are designed to release ZnO into the aquatic environment. He added that, with biocidal products, MSs should be able to use their own national standards and protection targets when deciding which products should be given marketing approval.

In other areas, the EC has been faced with the dilemma of how to draw up guidelines while avoiding loopholes large enough for MSs to exploit with their own initiatives. It has just issued a definition of nanomaterials, which is required for a wide range of EU regulations but some argue that this is so broad that MSs will inevitably introduce their own, stricter criteria.

Similarly, a definition of endocrine disrupters currently being drawn up by the EC in consultation with MSs is likely to be regarded as too conservative by some EU countries. France and some of the Scandinavian countries may as a result adopt their own approach to endocrine disrupters.

The EC is reportedly reluctant to make any significant changes to REACH when it comes up for review next year, wanting to avoid a legislative deadlock similar to that hitting TSCA reform. However, as in the US, an unchanged REACH may accelerate a trend to decentralisation, with MSs taking their own initiatives to eliminate perceived deficiencies in the legislation. It is all too fine a balance.

 

 

From Online Issue: December 2011