Cleaning Up EPA Chemicals List Could Ease Corporate Risks

By Pat Rizzuto

The EPA’s list of chemicals allowed in commerce is plagued by redundancies and errors, according to companies that face fines and increased regulatory costs.

An accurate inventory also would help the Environmental Protection Agency implement the nation’s amended chemicals law—the Toxic Substances Control Act—which requires the agency to evaluate the risks of the estimated 85,000 chemicals on the list.

Having an accurate inventory will be critical as the agency decides which chemicals warrant scrutiny, Karyn Schmidt, a senior director at the American Chemistry Council in Washington, told Bloomberg Environment. And that scrutiny can affect customers’ willingness to buy a chemical or prompt the agency to restrict the molecule.

The inventory lists existing chemicals that are or have been in U.S. commerce, and it’s illegal to make or sell a commercial or industrial chemical unless it is on the list. The EPA published the original inventory in 1979 and presumed about 62,000 chemicals in commerce then were safe. Since then, 20,000 or more chemicals have been added but none removed.

“This cleanup of the inventory is critically important,” said Schmidt, whose association represents companies including Dover Chemical Corp., Honeywell, and 3M.

$32,500 A Day Fines

Chemical manufacturers can face fines of up to $32,500 a day and other obstacles when the agency and the producer disagree about whether a particular chemical is on the inventory, Jim Cooper, a senior adviser with American Fuel & Petrochemical Manufacturers in Washington, told Bloomberg Environment.

Unless the EPA “rationalizes the inventory,” chemical manufacturers risk being hit with fines that they don’t deserve, said Cooper, whose association represents companies like Andeavor, BASF Corp., and Exxon Mobil Corp.

Dover Chemical in Dover, Ohio, for example, was a party to one well-known dispute when it challenged the EPA’s allegations that a chemical it made wasn’t on the list. Dover settled in 2012 for $1.4 million in civil penalties and agreed to cease production.

Chemical management costs can also increase when two or more identical chemicals have different names but have to be managed differently, Schmidt said.

There are so many acceptable ways to name a chemical that different manufacturers could give the same substance different names, Frankie Wood-Black, principal for Sophic Pursuits, Inc., an independent consulting firm in Ponca City, Okla., told Bloomberg Environment.

“We struggle all the time” to decide how to name a chemical, Wood-Black said. She referred to her experience as a consultant and former chemical manager at ConocoPhillips Co.

The EPA guidances that Bloomberg Environment reviewed showed a single chemical’s name may include such information as the feedstock from which the chemical is produced, the manufacturing process that generates it, the shape of the molecule, and the range of carbon or other atoms it could have.

Bloomberg Environment asked the EPA for comment May 3. The agency asked to be given until May 18 to reply, but didn’t.

Same Chemical, Different Rules

Three different companies could choose three different names, yet “essentially it’s the same stuff,” Wood-Black said.

The three molecules “wouldn’t look any different” if a chemist analyzed them—the same chemical can be made with canola oil or sunflower oil, Wood-Black said.

“From a health perspective there’s no difference,” she said.

Yet, the chemical from those two sources of oil could have different names because different oils are used to make them. If both chemicals were added to the inventory after it was originally released, they would have been reviewed by the EPA as new chemicals, Wood-Black said.

Those reviews could result in divergent regulations of identical chemicals.

Guidance Authorized by TSCA

The EPA is updating the inventory so it can distinguish chemicals that have been in commerce since 2006, 10 years before the law was updated, from those that were sold before then.

In addition to this required update, the chemistry council and trade groups told Bloomberg Environment that they want the agency to issue guidance that TSCA authorizes but doesn’t require.

The law allows chemical manufacturers and processors to demonstrate to the EPA “that a chemical substance appears multiple times” on the inventory. The agency can then “recognize the multiple listings as a single chemical substance.”

It’s important that the EPA issue new guidance while it updates the inventory, so companies know what information the agency would need to prove that one chemical on the inventory is indistinguishable from another, Schmidt said.

Avoiding EPA’s Review?

But some are skeptical about the manufacturers’ efforts to make any inventory changes beyond what the law requires. One of the inventory’s core functions is to determine whether a chemical is existing or new, Daniel Rosenberg, an attorney with the Natural Resources Defense Council in Washington, told Bloomberg Environment.

“Chemical manufacturers want to avoid the potential scrutiny of a properly administered new chemicals program, and that may be a driver for some of the claims of mistake, error, duplication or equivalency on the inventory,” Rosenberg said.

But, Schmidt said, the guidance trade groups seek has nothing to do with introducing a new chemical to commerce.

“If you’ve got chemicals A, B, and C, they’re already on the inventory,” Schmidt said.

Chemical manufacturers want a process companies can follow to make the case that the chemicals are the same, she said.

The EPA would make the final decision, Schmidt told Bloomberg Environment.

Correcting Errors

In addition to seeking guidance on duplicative chemicals, David Wawer, executive director of the Color Pigments Manufacturers Association in Arlington, Va., said that group would like the EPA to update its process of correcting inventory errors.

The names of some chemicals—especially ones stemming from the late 1970s and early 1980s—are wrong, he said.

Individuals who weren’t chemists and didn’t understand how to properly identify the molecule sometimes named them, and the errors have been realized since then, said Wawer, whose association represents companies including Flint Group and Lansco.

Yet the EPA’s process to correct errors largely is “unworkable,” as only the original chemical manufacturer or a successor company can ask the agency to correct an error, Wawer said.