Chemical Week  [Printer-friendly version]
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

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.