EPA announces first chemicals for “fast-track” under new chemical law - Selection highlights law's limitations and continuing role for states

The U.S. Environmental Protection Agency (EPA) has announced the first five chemicals it will “fast-track” under the Frank R. Lautenberg Chemical Safety Act for the 21^st Century (LCSA). The EPA now has until June 22, 2019 to identify where these chemicals – all considered persistent, bioaccumulative and toxic – are used, how exposures occur, and propose possible restrictions on their use.

“The threats from persistent, bioaccumulative and toxic chemicals [PBTs] are well-documented,” Jim Jones, assistant administrator in EPA’s office of chemical safety and pollution prevention, explained in a statement. “The new law,” said Jones, “directs us to expedite action to reduce risks for these chemicals, rather than spending more time evaluating them. We are working to ensure the Frank R. Lautenberg Chemical Safety Act signed in June of this year delivers on the promise of better protecting the environment and public health as quickly as possible.”

This sounds promising. While it is a step forward in pushing the EPA to act, a look at these five chemicals and how they were “identified” – how the EPA explained the selection– raises questions about how effectively this provision of the law will enable the EPA to protect public health and the environment. As Safer Chemicals, Healthy Families director Andy Igrejas said in a statement,

“We fought to have this provision applied to a broader group of chemicals, but the chemical industry resisted. Nevertheless, expedited action even against these five chemicals will be a win for public health.”

How this LCSA provision works, also points to the ongoing importance of state action on toxics, say toxics reduction experts in states at the forefront of safer chemicals policies.

So what are these five chemicals and how were they chosen?

As described by the EPA they are:

• Decabromodiphenyl ethers (DecaBDE), used as a flame retardant in textiles, plastics and polyurethane foam;
• Hexachlorobutadiene (HCBD), used in the manufacture of rubber compounds and lubricants and as a solvent;
• Pentachlorothio-phenol (PCTP), used as an agent to make rubber more pliable in industrial uses;
• Tris (4-isopropylphenyl) phosphate, used as a flame retardant in consumer products and other industrial uses; and
• 2,4,6-Tris(tert-butyl)phenol, used as a fuel, oil, gasoline or lubricant additive.

The details of how these five were “identified” – EPA’s wording in explaining the selection – are a bit complicated. First, as the EPA explains, criteria in the LCSA were applied to chemicals previously listed on the EPA’s Toxic Substances Control Act (TSCA) 2014 Work Plan. To rise to the top of the possible heap, the chemicals had to score high for environmental persistence and for bioaccumulation.

However, Congress excluded from possible LCSA fast-tracking any metals and metal compounds. It also excluded chemicals for which the EPA has already begun an evaluation or completed a TSCA Work Plan “problem formulation” – EPA’s analysis of hazards, exposures of concern, toxicity and other data. Further excluded are chemicals subject to a TSCA “consent agreement” – when the EPA requires a company to provide environmental or health effects data to determine if the substance presents unreasonable risks – and those for which the EPA has already received a LCSA risk evaluation request.

Toxic but not necessarily the most urgent

With these five categories of exclusions, the law appears likely to eliminate fast-track possibility for various chemicals that may be of greater urgency for regulation, notes Toxic Use Reduction Institute senior associate director and policy program manager Rachel Massey. Given the way the law works, “The five chemicals actually aren’t really EPA’s ‘choice’,” explains Environmental Defense Fund senior scientist Richard Denison.

“That PBTs are a priority and the EPA can move forward on these chemicals is good, but not as good as being able to move forward on more important chemicals,” says Holly Davies of Washington State Department of Ecology's hazardous waste and toxics reduction program. And, she points out, with the exception of the flame retardant tris (4-isopropylphenyl) phosphate, which is used in children’s products – and that her department has already recommended banning – and decaBDE, the other chemicals being fast-tracked are not ones with likely wide consumer exposure.

DecaBDE has already been voluntarily phased out of production in the U.S. It is still imported and used in products, but already subject to numerous restrictions under state laws, including some outright bans. “We banned deca nine years ago,” says Davies. Still, the EPA’s new action was welcomed as a way to get the flame retardant out of products nationwide.

With respect to the other chemicals on the fast-track list, HCBD is classified as a possible human carcinogen and listed by the Stockholm Convention on persistent organic pollutants. It is no longer manufactured intentionally in the U.S., Europe, Japan, Mexico or Canada. According to the United Nations Environment Program (UNEP), “Information on unintentional HCBD production is scarce,” and there is “no information on on-going uses of HCBD.”

Neither PCTP (used in rubber manufacture) nor 2,4,6-Tris(tert-butyl)phenol (used in fuels and other chemical manufacturing), are tracked by the EPA’s Toxics Release Inventory so it’s hard to know where they’re used or released in the U.S. Both are highly persistent and bioaccumulative but the European Union currently lists neither as “substances of very high concern.”

So while these five chemicals are undeniably toxic, there are many others not receiving this fast-track attention that may be of more widespread concern. “To the extent that the EPA is not taking on the most potentially high priority chemicals, it’s really important for the states to continue their work on these chemicals,” says Massey.

And says Davies, “It’s important for states to keep looking at chemicals not on the EPA’s first lists” under the new federal law.