ACA Efforts to Address Pending Changes in U.S. Chemicals Management Policy

New and aggressive legislative efforts at the federal and state level are anticipated seeking to amend longstanding policies with respect to management of new and existing chemicals, including critical coatings industry raw materials. To a large extent, the focus is expected to be on the Toxic Substances Control Act (TSCA), a 30-year old statute that has served to regulate the chemical industry into the modern era. Numerous advocacy groups believe that TSCA has outlived its usefulness and has failed to address new and emerging public health risks associated with chemicals of concern. Industry, having longstanding established compliance practices, believes that TSCA has largely fulfilled its promise and only requires "modernization" in a few aspects. Fueling public opinion for alternative chemicals management policies, advocacy groups are targeting specific risks - in particular, chemicals used in children's products, building on the high profile incidents with Chinese-made toys. While no specific legislation has emerged, and only a few general hearings have been held in Congress, the view is that changes are coming. One only needs to consider the changes that have taken hold in other global markets (for example, the European Union's (EU) Registration, Evaluation and Authorization of Chemicals (REACH) regulation) to understand that alternative approaches have the potential to place significant burdens on the allied chemical industry in an effort to address public health, safety, and environmental concerns.

Against this backdrop, the ACA Executive Committee in January 2010 affirmed a new chemicals management position statement to be used by the association in the expected policy debates on chemicals management. Over the past few months, ACA staff has worked with the association's Chemicals Management Work Group to develop the position statement, which first and foremost seeks to define a role for paint and coatings manufacturers. The clarification of the industry's role as formulators of chemicals is essential, as is the establishment of constructive ways the paint industry can work to support the advocacy of chemical manufacturers supplying the raw materials.

The mission of the ACA Chemicals Management Workgroup is to help develop the necessary science and technical basis for effective and constructive changes to the national chemicals management policy, and support efforts to advance domestic consensus policies for chemicals management globally when such opportunities are identified. The Workgroup will accomplish this by emphasizing the industry's understanding of key concepts likely to require expanded efforts, including but not limited to exposure and risk assessment, information-collection methods, chemical safety standards, and other chemical use-related activities. The Workgroup will also seek to advocate and implement the paint industry's specific policy needs in concert with other allied chemical industry stakeholders. Some specific areas ACA will need to address include:

1. MANAGING THE EXPANDED SCOPE OF TSCA: The paint industry will need to address the call from the public and other critical stakeholders to engage the value chain in assessing the risks and establishing effective risk management practices for diverse uses of chemicals in formulated products. While testing individual chemicals may better be left to the actual chemical manufacturer, product exposure assessment and other "use-specific" activities are likely to be proposed for formulators and even "end-users" of chemical products. Inherent in this effort must be an acknowledgement that there are many other established regulations that support safe use of chemicals in formulated products, including requirements for providing end-users with clear, consistent information on chemical hazards.

2. DEFINING INDUSTRY DATA REQUIREMENTS: Past voluntary testing initiatives on commercial chemicals have been very effective in increasing knowledge about specific environmental and health concerns, but many advocates are calling for more comprehensive testing. ACA, along with other allied chemical industry associations, must expect to help define policy with respect to chemicals testing that supports continued use of chemical products.

3. COMPELLING EPA TO ESTABLISH A PRIORITIZING MECHANISM: Past efforts on the part of industry to validate targeting resources on "high risk" and/or "high volume" chemicals, however successful, have not quelled industry and agency (EPA) critics who want a more comprehensive effort. ACA will need to weigh in on this debate with effective policy arguments based on real-world coatings examples.

4. REQUIRING GOVERNMENT- SUPPORTED EVALUATIONS: Often, industry-supported data on the health and environmental impacts of chemicals is viewed critically by environmental advocates. Continued industry efforts to characterize chemical risk, including where necessary additional testing, requires a mechanism for the agency (EPA) to provide support (endorsement). This effort is essential to support continued uses.

5. DEFINING CHEMICAL SAFETY/RISK MANAGEMENT PRACTICES: Industry efforts to establish "safe use" practices for its products must be defined and offered for consideration by policymakers. These include valid and reliable risk management practices including use and exposure controls, personal protective equipment, and waste management methods appropriate for the product.

6. MAINTAINING CBI/PUBLIC INFORMATION CONTROLS: A critical consideration for any industry that markets intellectual property, is maintaining confidential business information (CBI). Current TSCA regulations offer such protection, but have been questioned under the new policy debate. How the industry reacts to this is important, and coatings industry concerns must be defined and addressed in any new policy proposals.

7. MAINTAINING FEDERAL PREEMPTION: In light of the current economy, gaining federal pre-emption offers opportunities to forestall differing and confusing approaches for chemicals management at the state (and even local) level. The current TSCA statute is preemptive of state and local efforts, but many states are seeking to gain authority for alternate, more restrictive approaches. It will be critical for the coatings industry to define concerns and needs here.

Again, while no specific legislative proposals have been offered to date, they are anticipated in the near future. In addition, the EPA has taken steps to reinforce their existing authority through the publication of Chemical Action Plans (CAPs) which may drive more stringent regulatory proposals for certain paint raw materials. In addition, "Green Chemistry" and ingredient disclosure initiatives in California have emerged as part of the "first round" of proposals supported by newly empowered advocacy groups.

In short, ACA members will be facing an active policy agenda on chemicals management which will require the ACA to work constructively to address legislative and regulatory proposals, seeking to have them reflect sound science and consistent approaches that consider coatings industry interests.

For more information: contact ACA's Steve Sides.

Date Posted: February 16, 2010