In an unusual exercise of its authority under the Toxic Substances Control Act (TSCA), the U.S. Environmental Protection Agency announced on December 30 the establishment of a "chemicals of concern" list and action plans that could prompt restrictions on four types of synthetic chemicals used widely in manufacturing and consumer products, including phthalates used to make flexible plastics, often for toys, household products and medical equipment.
Of the compounds covered in the action plans—which also include polybrominated diphenyl ethers (PBDEs), long-chain perfluorinated chemicals (PFCs) and short-chain chlorinated paraffins (SCCPs)—phthalates and PBDEs will be listed as "chemicals of concern." The PFCs and paraffins will be addressed under other TSCA provisions that could also result in restrictions.
These four types of chemicals, the EPA said, raise "serious environmental or health concerns" and in some cases "may present an unreasonable risk of injury to health and the environment."
This is a big deal because it is the first time since TSCA was passed in 1976 that the EPA has made such a move. To date, the agency has only successfully used TSCA to restrict or ban five of the 80,000-plus chemicals on its inventory of those used or produced in the U.S. Although this action will not immediately change the chemical landscape for consumers and manufacturers, the "chemical of concern" listings indicate EPA thinking that these chemicals are potentially dangerous and that further regulatory action is warranted. Listing also triggers export and production notifications under TSCA, requirements that may deter some users.
"The decision to list the chemicals further signals this administration's commitment to aggressively use the tools at its disposal under TSCA," EPA spokesperson Ernesta Jones said. This action, she said, also indicates the "EPA's strong belief that the 1976 law is both outdated and in need of reform."
Some of the chemicals subject to these action plans are already being phased-out voluntarily or restricted by state or other federal laws. But the EPA's action—particularly for substances listed as "chemicals of concern"—could go further than existing regulations. Although TSCA has proved a cumbersome instrument for regulating hazardous chemicals, it allows the Obama administration to achieve these goals without the challenge of lining up votes in Congress for new legislation.
The action plans, which vary by chemical, include placing these compounds on the Toxics Release Inventory that requires reporting of environmental releases, along with developing safe alternatives through the EPA's Design for Environment program and green chemistry initiative.
Chemicals covered by the plans are used as plasticizers, as flame retardants and to create nonstick surfacing as well as stain-, grease- and water-resistant coatings for cookware, textile and food packaging. They're used in personal care, household and cosmetic products as well as for numerous industrial applications. They have been found consistently in wildlife and in human blood samples during biomonitoring tests including those conducted by the U.S. Centers for Disease Control. Numerous animal studies document their adverse impacts on developmental, metabolic, reproductive and other bodily systems. Many are environmentally persistent as well as bioaccumulative—meaning that they can build up in fat tissue. They also have been identified as endocrine disruptors. Some PBDES may potentially cause cancer.
Immediate response from the American Chemistry Council (ACC), the chemical manufacturers' trade association, criticized the EPA's choice of chemicals for the action plans. These chemicals, the ACC said, "seem to have been selected based on little more than their current 'high-profile' nature." ACC president Cal Dooley also faulted the action plans for a lack of transparency, saying the process "to date provides no evidence of a systematic, science-based approach to chemicals management."
The chemical company BASF, a major phthalate manufacturer, said via e-mail that it "believes the actions proposed in the [EPA] plan are unwarranted," but that the company "is committed to working with the EPA and other government agencies to ensure the safe use of our products." Asked how the EPA's action might affect future plans, BASF replied that given its "strong focus on innovation," it would "continue to develop new products to meet the changing needs of the marketplace," while defending its existing "important and beneficial products against unwarranted regulations."
Among the chemicals included in the action plans, PBDEs and long-chain PFCs are already subject to voluntary phaseouts being worked on in cooperation between industry and the EPA. This, explains DuPont chemical company spokesperson Janet Smith, has led to a 98 percent reduction of PFC emissions at DuPont's manufacturing sites. The new EPA action, however, could lead to formal regulation. And, notes Richard Denison, senior scientist at Environmental Defense Fund, many other PFC compounds not covered by the EPA actions or voluntary phaseouts are currently used—including in food packaging—that raise similar environmental health concerns.
Meanwhile, major retailers, including Costco, Target and Wal-Mart are following these developments closely. Costco noted that its product offerings follow state as well as federal law. If a particular material is restricted in one state or even a local jurisdiction, the company will typically follow that lead nationally.
Some companies, particularly those—with their own product lines, such as Target and Wal-Mart—have already begun to modify materials, in some cases acting in advance of regulations. "We're very proactive," Target spokesperson Amy Reilly said.
Similarly, Wal-Mart spokesperson Melissa O'Brien said that its goal "is to ensure we have compliant product in stores on the effective date of any new regulation." Wal-Mart, for example, is not waiting for the regulatory process to progress but has already extended its restrictions on phthalates beyond existing federal requirements to include plastic components in children's clothing and footwear.
"The American people are understandably concerned about the chemicals making their way into our products, our environment and our bodies," said EPA Administrator Lisa Jackson, announcing the action plans. "Chemical safety is an issue of utmost importance, especially for children, and this will remain a top priority for me and our agency, going forward."
The action plans involve rulemaking that will begin later this year, including public comment and stakeholder input, on timelines that could extend beyond 2012. But as it has before, the consumer market may act sooner. Additional action plans are slated, including for another high-profile substance, bisphenol A (BPA), the chemical building block of polycarbonate plastics used in countless consumer products and to make many resins that line food and beverage cans. It, too, has been detected in numerous human biomonitoring studies. BPA has been identified as an endocrine disruptor and has been linked in numerous animal studies to adverse health effects, including in reproductive and metabolic systems, which have prompted public concern. The BPA action plan is bound to attract wide attention.
Elizabeth Grossman writes about environmental and science issues from Portland, Ore. She is the author most recently of Chasing Molecules: Poisonous Products, Human Health and the Promise of Green Chemistry.