The EPA vs. Silicone Manufacturers

Old hands in the Washington, D.C., power game don't worry about the high-profile issues. Immigration, national debt, the broken health-care programs, global warming -- those will take care of themselves. It's the little agency initiatives that we watch, because these programs often lack proper transparency and accountability while having far-reaching implications.

One of the new developments that needs attention is EPA's attempted power grab under the Toxic Substances Control Act (TSCA). That law is intended to ensure we know what threatens human health and the environment and to regulate the chemicals that do. The law also places the cost of doing chemical-hazard studies on the backs of the manufacturers. After all, those companies are in the best position to ensure the chemicals are safe and effective.

The existing law requires a plethora of tests to find out what dose of a chemical will harm people or other living things. This is called "hazard assessment" and falls within the authority of the EPA's toxics office. Once EPA knows the dangerous level, it can require monitoring to see if those levels exist in our environment.

Those additional analyses are done under a variety of laws including the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act. Now EPA's toxics office wants to start using TSCA to get in on the environmental monitoring game too.

The target of EPA's latest maneuvering? The silicone industry and a chemical so unpronounceable that it's called simply "D4." Back in 1984, a trace amount of this chemical was found in one drinking-water supply. D4 went on the list of possible problems and it never came off. It should have.

D4 can be found in many products that enhance our lives. It is in over 1,000 cosmetic and hair products. It is used in medical devices. It helps seal the edges of your bathtub, sink, and windows. It is used in many chemical processes, and science has time and time again confirmed its safety for human health and the environment.

Canada, Wales, Denmark, and the European Commission Scientific Committee on Consumer Safety have all deemed D4 safe. In fact, even in the EPA's "worst case" scenario, D4 exists at levels well below those that would cause any adverse effect.

Despite everything we know about D4, EPA wants more data and has a risk assessment for the substance planned for this year. The good news for the agency is that the industry -- rather than fighting EPA's efforts -- is so confident in the safety profile of D4 that it is volunteering to produce even more environmental data while picking up the full tab.

Yet, after nearly a year of negotiating, EPA is still refusing to accept the industry's monitoring proposal, even after silicone manufacturers doubled the number of wastewater-treatment facilities it planned to monitor. A total of 14 sites and a cost of $5 to $8 million has simply not been enough for EPA.

EPA's objections now come down to bureaucratic minutiae. EPA is demanding that the industry provide D4 data from wastewater treated onsite at silicone manufacturing facilities (known as direct discharges) as well as wastewater that is sent untreated to nearby municipal treatment plants (known as indirect discharges). But indirect-discharge information is wholly unnecessary, given that anything coming out of an indirect-discharge industrial site will end up at a wastewater-treatment plant and be cleaned there before being released into the environment. And the industry plan already proposes to test at ten such facilities of the "worst case scenario" variety. The fact is, EPA already knows that wastewater-treatment plants remove 95 percent of D4 before the water containing it returns to the environment, leaving levels so low that most of the time it can't even be measured.

EPA's demand for indirect-discharge information lacks scientific justification. With millions of dollars on the line, EPA's rationale for requiring certain types of data needs to be more extensive than "because we do." And with a deal within reach, now would be a terrible time for the EPA to walk away over information that will never be used in a risk assessment for D4.

If the negotiations between EPA and the silicone industry fail, EPA threatens to write a rule forcing monitoring. It's a perfect rule to challenge, and my environmental-law students will get a significant legal victory if EPA actually does issue the rule. The rule is not authorized by the Toxic Substances Control Act, and it would violate the Paperwork Reduction Act, the Data Quality Act, and several executive orders.

If EPA managers are genuinely concerned about sensible environmental stewardship, they will remember that they have to pick their battles. EPA should take the monitoring proposal that is now on the table and call it a day. Both sides can get what they want and declare victory, a rare feat in Washington these days.

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