Getting a clearer picture on chemical use and production: EPA upgrades to digital black and white, but color has to wait until 2016

One of the many problems with our current system for regulating chemicals is that both EPA and the public lack good information on what chemicals are being manufactured in (or imported into) the U.S., how those chemicals are used, and how the public is likely to be exposed.  This lack of information has myriad effects, including making it much harder to assess which chemicals are of the greatest priority to test or regulate, or determine which pose the greatest risk to human health or the environment.  For that reason, strengthening reporting requirements for chemical production and use has been a priority for NRDC and our allies in the Safer Chemicals Healthy Families coalition.  It has also been the subject of an extended rulemaking effort by EPA.  Yesterday, EPA announced its final rule that will expand reporting requirements, and begin to provide the public with more information it needs to accurately assess the nature of chemical use and exposure in the U.S.

The rule announced yesterday takes several steps in the right direction: toward providing the agency itself and the public with greater information about the production, use, and likely exposure scenarios of more chemicals. Some of those improvements and expansions will kick-in next year, when the next round of reporting is due.  But, unfortunately, the final rule pulls back in several key respects from what EPA originally proposed, and kicks several important proposed expansions to current reporting requirements down the road to 2016. 

Some of the key improvements to current reporting requirements that will begin with next year’s reporting include:

• Electronic reporting will be mandatory; (this will save a huge amount of time in getting the information processed and available to the public);
• Claims that requested information is confidential (CBI) must be substantiated up front; (this closes, or narrows, a loophole that has been subject to abuse);
• Reporting threshold for information on processing and use of chemicals drops from 300,000 lbs to 100,000 lbs;
• Requires reporting information on the processing and use of chemicals that is “known or reasonably ascertainable” rather than the current “readily obtainable”; (this is a return to the standard used before the previous administration changed it, resulting in much less reporting);
• Re-starts a 4-year reporting cycle; (a return to what existed prior to 2006 when the previous administration shifted to a 5-year cycle).

The new rule makes several other small but potentially important adjustments to reporting requirements, such as requiring companies to disclose the use of their chemicals when they select “other” rather than one of the 32 use categories specified by EPA.  Prodding the industry to provide more detail, rather than opt for the most generic and least-informative disclosure option may yield valuable information on how chemicals are being used – and how people may be exposed.

 Regrettably, the chemical industry is congenitally committed to procrastination -- why do this year what it can do five years from now? – so it will always seek to postpone any new regulatory requirements for as long as possible.  And the White House, particularly the Office of Management and Budget, is equally committed to the soft bigotry of low expectations for the chemical industry – accepting that we can’t push it too hard or too fast, it’s just too fragile to provide more comprehensive information to the public now.  Put it this way: if the chemical industry was a child, and OMB was its parent, the chemical industry would have a lot of cavities (and bad breath).

Some important and necessary improvements that are postponed until 2016 include:

• Reporting will be triggered if a manufacturer exceeds the 25,000 lb threshold in any calendar year during the reporting period;
• Reporting of production volume will be reqd. for each year of the 4 year reporting period; (previously, chemical manufacturers and importers only had to require on one year’s worth of production, every five years, despite wide disparities in production from year-to-year. EPA initially proposed requiring data in this reporting cycle for the years 2006-2010);
• The reporting threshold for processing and use information will drop from 100,000 lbs to 25,000 lbs.; (EPA initially proposed dropping to 25,000 lbs for this reporting cycle);
• For chemicals that are the subject of particular TSCA rules or orders – such as restrictions on use because they pose an unreasonable risk to human health or the environment, or have been identified by EPA as “chemicals of concern” -- the reporting threshold will drop from 25,000 pounds to 2,500 pounds (EPA initially proposed to eliminate the threshold entirely).

Without taking away anything from the improvements outlined above, and several others, the final rule still falls short of what is really necessary to provide the public with the information it needs to get a better handle on what chemicals are being produced (or imported) , where, and how they are being used.  The reporting threshold for manufacture of chemicals, 25,000 lbs remains too high, particularly because it applies to the manufacture of chemicals per site, so significant aggregate production of chemicals at multiple sites will still be missed. Prior to 2006 when it was raised by the previous administration, the threshold had been 10,000 lbs, (per year, per site) and there is a strong case to be made that it should be lower. 

 Given the anti-EPA hysteria that seems to be prevailing in Washington, and the less than stalwart support that the agency has received from the White House, at least when it comes to proposed actions under the Toxic Substances Control Act, the fact that EPA is issuing a final rule to expand the reporting requirements for chemical manufacturers is good news.  EPA Administrator Lisa Jackson and her staff deserve credit and appreciation for their efforts to strengthen and improve public access to information on chemical use and production (and risk). The Administrator and her team have labored, with limited but important success, to do what is right for the public.  Those improvements will have lasting impacts; long after the current distorted political picture and it’s most important actors have faded from view.