Chemical Week, July 11, 2006


[Rachel's introduction: The European Union's REACH proposal is increasing the pressure on corporations to evaluate alternatives to toxic chemicals. Two new reports, from Clean Production Action and from the Toxics Use Reduction Institute (TURI at U. Mass, Lowell) demonstrate that alternatives assessment of toxicants is feasible and is already being used by some corporations today.]

By Kara Sissell

[We have added links within the text. --RPR Editors]

The European Union's upcoming Registration, Evaluation, and Authorisation of Chemicals (Reach) law will require companies to examine the availability of alternatives to chemicals classified by the EU as persistent, bioaccumulative, endocrine disrupters, or "substances of like concern." The availability of alternatives will therefore dictate how long an existing chemical can be sold or used, at least in the EU market, attorneys say. And, while it is not clear which substances will fall into those categories, it is certain is that Reach is the beginning of the end for at least a handful of substances, they say.

Reach, if it functions as intended, will spur the phaseout of more toxic substances and the development of safer alternatives, experts say. But environmentalists acknowledge that many companies are not likely to let their products be restricted by Reach without first "defending, appealing, and delaying" any regulatory rulings to restrict their products. "There's going to be a big fight to keep chemicals off the list, and what gets on will depend on the strength of the regulatory agency involved and the support in the corresponding political structure," says at environmental group Clean Production Action (CPA; Medford, MA) Mark Rossi, research director.

Law firms say there are some chemicals that will not be able avoid restrictions, but that many others could be protected by producers building the best possible scientific case for keeping a substance on the market. Companies should also lobby their politicians for a favorable version of the legislation, and take a careful look at Reach and their products to decide how their portfolios will fair, says Herb Estreicher, an attorney at law firm Keller and Heckman (Washington). Companies counting on aggressive industry lobbying or political opposition to make Reach simply go away are going to be disappointed, Estreicher says. "This is not like several years ago when you had Tony Blair and other politicians being very vocal regarding their concerns about Reach," he says. "There's no groundswell of opposition in Europe this time as far as we can tell."

Some of the elements of Reach are not yet clear, however. The Parliament and Council will have to resolve their differences by December 31, and there are some key areas of disagreement, Estreicher says. "The Council would authorize the use of substances of very high concern (SVHCs) as long as they are adequately controlled, except for persistent, bioaccumulative toxins (PBTs) or very persistent, very bioacummulative toxins (vPvBs), where one would need to show that socio- economic benefits outweigh any residual risk and there are no suitable alternatives," Estreicher says. Parliament would not grant authorization if suitable alternatives exist for any SVHC, not limited to PBTs or vPvBs, even if the risk is adequately controlled and the socio-economic benefits outweigh the residual risk, he says. "The intent of the Reach law is that substitutes will only be required if they are well understood and that any exposure is carefully managed," he adds.

Chemical manufacturers say that the final Reach law should allow companies to continue to use a chemical for which the socio-economic benefits outweigh the risks as long as measures are put in place to prevent exposure, rather than having companies go through the process of proving that no alternatives are available. Companies also say they are concerned about the proposed five-year permit review process for reevaluating chemicals that have been granted authorization. Once equipment or other measures are put in place to control exposure, they should be allowed to continue to use those chemicals as long as exposure is prevented, ACC says. "Where a manufacturer has shown that the socioeconomic benefits outweigh risk, the review period for the authorization that is granted should be determined on a case by case basis, rather than in an arbitrary, across-the-board manner," says ACC senior director Steve Russell.

Candidate List Concerns

In the meantime, there are several places companies can look to see if their chemical is likely to end up on Reach's "candidate" list of SVHCs. "What companies need to think about is if they have chemicals that are identified in Germany or Canada as PBTs, and see what scientific models are used for by those countries," Estreicher says. "All the data on the Environment Canada Web site is based on predictive values and may involve data that is not appropriate to measure those properties," he says. "Companies, if doing business in Europe, should think about building a scientific case that their substance is not a PBT," he adds.

Predicting which substances may be subject to restrictions as endocrine disrupters is much more difficult because there is no established criteria, either in the U.S. or Europe, for identifying them, Estreicher says. The EU does have a "working list," however, and companies should "start thinking about good science to establish materials showing the substances are not endocrine disrupters," he says. Companies can also look at the data coming out of the EU's technical working groups on this issue, and at Denmark's list of undesirable chemicals for likely endocrine disrupters," he adds.

Another section of the legislation that is unclear is the catch-all category "substances of like concern," he says. "It's not clear what is going to fall into that category and companies need to watch it closely." As in the other sections of Reach, the Council has proposed a much more stringent definition than the Parliament and it "is an important area of disagreement," he adds.

EU restrictions aside, consumer and customer trends indicate that chemical suppliers are not likely to escape the increasing demand for use of safer alternatives, environmental groups say. A recent report by CPA [2.8 Mbyte PDF] cites the chemical use-reduction policies of six major corporations, several of which have told their suppliers to not use substances ranging from polyvinyl chloride (PVC) to perfluorooctanoic acid (PFOA). Furniture manufacturer Herman Miller requires that suppliers provide information on a parts per billion basis describing the toxicity of the product, and clothing retailer H&M conducts random testing to enforce its policy that restricts toxics in the products it buys, in effect "pushing the precautionary principle up the supply chain," Rossi says.

The CPA also report details the toxics use reduction programs initiated by textile manufacturer Interface Fabric; health care firm Kaiser Permanente; Avalon Natural Products cosmetics; and computer retailer Dell.

H&M has a protocol in place requiring its suppliers eliminate more than thirty substances, including azo dyes and pigments, flame retardants, short-chained chlorinated paraffins, PVC, phthalates, and bisphenol A. Dell has stopped the use of PVC and brominated flame retardants, and Kaiser Permanente has committed to PVC-free carpeting and building materials, as well as PVC-free intravenous tubing and plastic sheeting. Interface has a strict protocol for use of non-toxic dyes in its fabrics, and Avalon Natural Products has committed to eliminating certain substances, including parabens and phthalates, and to avoid use of petroleum products. Herman Miller has a strict chemicals use policy, and demands specific chemical content data from all its suppliers.

"We and others in our industry realize we are at the beginning of a long journey. As a relatively young industry we're learning quickly how to meet both business and environmental goals and how to effectively manage these issues with our supply chain," says Mark Newton, senior consultant for environmental policy at Dell.

Rossi says that the companies profiled in the CPA report are the leaders in a wide field of players in terms of environmental responsibility. "Companies fall into five basic groups when it comes to the diffusion of new, safer products or technologies: innovator; lead adopter; early majority; late majority; and laggards," Rossi says. Environmentalists say that chemical industry trade groups usually take the lowest common-denominator approach to toxic use- reduction policy. That approach serves not only to reflect the varied positions of its members, but also makes it easier for the better performing companies to position themselves as leaders in the field of innovation and corporate responsibility, says Lee Ketelsen, director/New England for environmental group Clean Water Action (Boston).

State Level Activity. Adding to the pressure to adopt safer alternatives are U.S. states and municipalities, some of which have their own initiatives for restricting certain substances. "States are the incubators of new ideas in the U.S.," Rossi says. "We are going to see a lot more activity at the state level percolate up to companies," he says.

Massachusetts legislators are considering a bill that would require companies to in some cases adopt alternatives to lead, formaldehyde, trichloroethylene, perchloroethylene (perc), dioxins and furans, hexavalent chromium, organophosphate pesticides, pentabromopdiphenyl ether, di-(2-ethylhexyl)phthalate (DEHP), and 2,4- dichlorophenoxyacetic acid. The state's 1989 Toxic Use Reduction Act (Tura) required officials to set up the Toxic Use Reduction Institute (Turi; Lowell, LA), a state-financed organization that helps companies make sure they are in compliance with the state and other environmental regulations, including the European restriction on hazardous substances (RoHS) directive for electronics, and will be doing the same for Reach's potential impacts, says Turi deputy director Liz Harriman. "It's hard enough to keep producing in the U.S. We wanted to make sure companies could service the global market for safer materials," Harriman says. Massachusetts's Turi is the only government organization in the U.S. that provides this level of assistance to companies, she says.

Turi recently completed a report on the availability of alternatives for certain uses of five chemicals: lead, formaldehyde; diethyl (2- ethylhexyl) phthalate (DEHP); hexavalent chromium; and perchloroethylene. The Turi report, which the Massachusetts legislature commissioned to help lawmakers evaluate the expanded Tura legislation, found that all five substances examined have viable alternatives, or process changes, but the degree of applicability varies depending on specific uses. For example, hexavalent chromium is used in decorative chrome bumpers for automobiles and other vehicles, but trivalent chromium is a safer alternative. "It still doesn't look the same, which is a big problems for decorative chrome applications," she says. On the other hand, the U.S. government has done a lot of work investigating process changes to eliminate the need for hexavalent chromium in hard chrome, which is used by aerospace and defense industries for jet engine parts and military applications.

The report looks at the safety of various alternatives, but does not rank the safety of one alternative compared to another. However, some of the alternatives did raise red flags as far as substituting one danger with another, Harriman says. Some solvent-based vapor degreasers that are used as an alternative to perc in dry cleaning, has environmental and occupational safety "impacts," the report says. The advisability of using cleaners made with n-propyl bromide is in doubt because "it's a neurotoxin, and its carcinogenicity is under study," the reports says. "Other concerns are that the solvents have higher vapor pressures than perc, which "will lead to greater evaporation and potential to escape from the degreaser; this will increase the potential for worker exposure, and may cause greater fugitive emissions than with perc," it says.

Plastics processors were heavily involved in contributing to the report's section on DEHP alternatives, Harriman says. Many of those companies point out that they no longer use DEHP in toys or children's products. It is also hard to determine how much exposure occurs to people in the U.S. from furniture, flooring or other PVC products imported from abroad, she says. Many imports come from countries where the manufacturers have not taken such steps, which raises a policy quandary for federal regulators, she says. "Controlling what comes into the country is a lot harder than having our manufacturers do the right thing," she adds.

The Massachusetts experience shows how the absence of data can at times work to forestall regulations. Had more data been available at the time, proponents of the legislation likely would have considered including pefluorooctanoic acid (PFOA) and bisphenol A in the bill pending in Massachusetts. In addition, Harriman says Turi did not examine suspected endocrine disrupters because there are no federal criteria for defining the term. "We would have had to make a toxicological judgment call, which would be a big issue," she says.

Chemical companies often say more data is needed on certain products before they can be regulated, but environmental groups often use new studies to launch campaigns against a chemical. The availability of toxicity data, the availability of alternatives, the severity of suspected health effects, and the usefulness of the product all play a part in determining whether a substance will be targeted by environmental groups, Ketelsen says. For example, some may argue that there is a social need for DDT, which is seen as essential to stem the spread of disease in some countries. Other product uses, such as the flashing light feature on children's tennis shoes which used mercury- based switches, are obvious candidates. Pressure from environmental groups caused most shoe manufacturers to switch to a safer switching mechanism, she says.

Environmental groups say, however, that prioritizing campaigns for alternative chemicals can be an arbitrary process, and that it is sometimes driven by a "flavor of the month" mentality that causes groups to focus on certain substances because they are in the news or in vogue. There tends to be a lot of interest in chemicals with new information, but "you have to remind yourself 'let's not forget about formaldehyde and lead' in the meantime," Ketelsen says.

Copyright 2006. Access Intelligence.