On April 29, 2013, the U.S. Government Accountability Office (GAO) released a report on the U.S. Environmental Protection Agency (EPA) titled "Toxic Substances: EPA has Increased Efforts to Assess and Control Chemicals but Could Strengthen Its Approach." The report is available at www.gao.gov/products/GAO-13-249.
The GAO has long faulted the EPA's chemicals management program. In 2005, GAO reported that the EPA failed to use its Toxic Substances Control Act (TSCA) authority to obtain information submitted by U.S. companies to foreign governments, and recommended that the EPA promulgate a rule requiring that companies provide the agency with copies of any health and safety studies and other information concerning the environmental and health effects of chemicals submitted to foreign governments. The EPA acted on some of the GAO's recommendations, but hasn't fully implemented them. GAO for this and other reasons, in 2009, added EPA's processes for assessing and controlling toxic chemicals to its list of programs at high risk of waste, fraud, abuse and mismanagement. The GAO updated this list in February 2013 and the EPA still is considered high risk.
What the GAO Found
The GAO found that, since 2009, the EPA has made progress implementing its new approach to managing toxic chemicals under its existing TSCA authority. GAO concluded that the EPA hasn't pursued some opportunities to obtain chemical data that companies submit to foreign governments or to obtain data from chemical processors that prepare chemical substances after their manufacture for distribution in commerce. The GAO believes these data could help support EPA's risk assessment activities.
Of the 83 TSCA Work Plan chemicals that the EPA prioritized for risk assessment, the agency initiated seven assessments in 2012. GAO states that the EPA plans to start 18 additional assessments in 2013 and 2014. GAO notes that it could take several years to complete the initial risk assessments and, at the EPA's current pace, over a decade to complete all 83, "especially as EPA does not have the toxicity and exposure data needed for 58 of the 83 chemicals prioritized for risk assessment."
The GAO claims the EPA's 2012 Existing Chemicals Program Strategy doesn't include leading federal strategic planning practices that could help guide its effort. The GAO found that the EPA hasn't clearly articulated how it will address challenges associated with obtaining the data needed for risk assessments and placing limits on or banning chemicals under TSCA.
The GAO recommends that the EPA administrator consider promulgating a rule under TSCA Section 8, or take action under another section, to require chemical companies to report chemical toxicity and exposure-related data they have submitted to the European Chemicals Agency (ECHA). GAO also urges the EPA to consider promulgating a rule to require chemical companies to report exposure-related data from processors to the EPA, and to direct the appropriate offices to develop strategies for addressing challenges that impede the agency's ability to meet its goal of ensuring chemical safety.
The GAO also states that it's unclear whether the EPA intends to pursue any action regarding its recommendation to develop strategies for addressing challenges associated with obtaining toxicity and exposure data needed for risk assessments. The EPA stated that it wouldn't be able to meet the goal of ensuring chemical safety without legislative reform and, until then, plans to use its Existing Chemicals Program Strategy.
Positive Steps Downplayed
The report is well written and provides useful information, particularly the quantitative information included in the footnotes. However, the report is disappointingly short on acknowledging the Office of Chemical Safety and Pollution Prevention's (OCSPP) efforts in using its TSCA authority more creatively and robustly than in years past. Many in the TSCA community recognize the effort OCSPP leadership and staff have put forward in trying to make TSCA align better with the Administration's chemical management goals. It's regrettable the GAO report doesn't devote more attention to what EPA is doing right under the circumstances than what it's doing wrong or not at all, and acknowledge more specifically the operational realities OCSPP must navigate.
LYNN BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at email@example.com
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006).