EPA Assistant Administrator Steve Owens Resigns

EPA Administration/Chemical Regulation:

On Tuesday, October 25, 2011, the Environmental Protection Agency (EPA) announced the resignation of Assistant Administrator Steve Owens.  Readers will recall that President Obama appointed Mr. Owens the Assistant Administrator for the Office of Chemical Safety and Pollution Prevention (OCSPP), which is the office implementing the Toxic Substances Control Act (TSCA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the Pollution Prevention Act, and other federal laws concerning chemicals management.  November 30, 2011, will be Mr. Owens’ last day in office before returning home to Arizona where he previously served as the Director of the Arizona Department of Environmental Quality.  It is unclear at this time who will assume Mr. Owen’s responsibilities and what effect his departure will have on EPA’s various chemicals management initiatives.

Mr. Owens served the EPA during a two-year period in which Congress, the courts, and various stakeholders engaged in vigorous debate and litigation over the appropriate regulation of chemicals in the United States.  In a 2010 brown-bag session (available on podcast), sponsored by the American Bar Association’s Pesticides, Chemical Regulation, and Right-to-Know Committee, Mr. Owens discussed many of the initiatives the Agency was undertaking and some of the challenges it faced as it participated and attempted to shape the debate. 

In a letter to EPA staff announcing his resignation, Mr. Owens said:

“I am writing to tell you that, after more than two years of working closely with all of you to protect Americans’ health and environment, I have made the difficult decision to leave EPA. My last day in the office will be November 30, 2011.
As many of you know, my family has remained in Arizona while I have been working at EPA headquarters in Washington. Although I have been able to get home to see my family periodically, I have essentially been away from them for more than two years. After a lot of hard thinking, we have decided that it is time for me to come home. My wife needs her husband; my sons need their father; and I need them.
While I am very happy that I will be back with my family, I will miss all of you greatly. It has been a true privilege to work with so many incredibly talented and dedicated people who are doing so much to protect the health and safety of the American people and our environment.
I am extremely grateful to Lisa Jackson for her wonderful friendship and the remarkable vision and leadership she provides to this Agency. We are truly fortunate that she is EPA’s Administrator.
As I said earlier, I will continue working alongside you all through November 30. Administrator Jackson will share additional information about the transition process shortly.
In closing, let me thank you so much for the friendship and support you have given me during my time at EPA. Please know how much I appreciate you and all that you are doing for our country.”


Japan Revises Its Annual Notification Requirements to Provide Greater Protection for Foreign Suppliers’ Confidential Business Information

Japan/Chemical Notification and Reporting:

Early in June 2011, Japan’s Ministry of Economy, Trade, and Industry (METI) announced a revision to the process Japanese companies use to annually notify the agency about the chemical substances that they import.  Under the new process, a foreign supplier can provide certain confidential business information (CBI) directly to METI rather than to the Japanese customer, and the Japanese customer would submit the remainder of the notification.  This joint process is a welcome approach, and although it is not a complete solution, it is an encouraging signal that METI will adopt a practical approach to implementing the 2009 amendments to the Chemical Substances Control Law (CSCL).

The annual notification requirement was adopted as part of a series of amendments to the CSCL that the government enacted in 2009 to move the country toward a more risk-based approach to chemical regulation.  For readers less familiar with the CSCL, the law is Japan’s analogue to the U.S. Toxic Substances Control Act (TSCA).  Several agencies, including METI, administer the law.  The CSCL generally requires Japanese manufacturers and importers to notify the agencies and receive their approval before commencing manufacture or importation of “new” chemical substances that are not otherwise excluded or exempt.  The law also bans certain substances and imposes restrictions and reporting requirements on others.  The annual notification requirement adopted in 2009 is distinct from the new chemical notification requirement.  The annual requirement applies to substances already on the market, and it was designed to provide additional exposure-related information to the agencies so that they can identify those whose risks warrant further management through restrictions or other measures.

The annual notification requirement applies to two classes of chemical substances, “General Chemical Substances (GCS)” and “Priority Assessment Chemical Substances (PACS)” that are manufactured or imported at or above 1 metric ton during the previous fiscal year.  (There is a similar notification process for so-called Monitoring Chemical Substances (MCS) that are manufactured or imported at or above 1 kg per year.)  When a GCS is present in a mixture below 10%, or a PACS is present as an impurity at less than 1%, it is not counted toward the 1-ton threshold.  Japanese companies that manufacture or import a reportable substance above the threshold must submit a notification form to METI between April 1 and June 30 each year.  2011 is the inaugural notification year.  The prescribed form requires information about the quantity of the substance imported or manufactured, as well as information about its chemical identity and uses.  

Prior to the revision METI announced, foreign suppliers, especially of mixtures, faced a tough choice.  Basically, they would either need to disclose to their Japanese customers the identities and percentages of the substances in their mixtures, potentially losing CBI since many of the mixtures are proprietary, or lose the customers by not providing information necessary to fulfilling a compliance obligation.  Preferring neither option, suppliers in the United States and elsewhere began lobbying METI for an alternative.  METI announced the alternative earlier this month, issuing guidance that revises the annual notification process.  However, the revision is not as comprehensive as what was requested since it does not protect from disclosure information concerning PACs.

METI’s revision affects annual notification of General Chemical Substances, but not PACs.  METI issued a three-page guidance document explaining the revised notification process.  A copy of the guidance is available here.  In it, METI explains that a Japanese company could submit a joint notification with its foreign supplier when the foreign supplier claims as CBI the chemical identity or its concentration rate in a mixture.  The Japanese company would initially complete as much of the notification form as possible and submit it to METI along with a cover letter explaining the situation and identifying the foreign supplier.  The incomplete form would function as a placeholder while the supplier completed the final version.  The supplier would then submit the final form to METI and the notification process would be considered complete. 

METI’s revision is an improvement on the annual notification process.  How well it works remains to be seen.  Presumably, the agency will make an evaluation at the end of this first notification cycle.  Readers interested in Japanese chemical regulatory control matters should check back periodically for further updates on this development and others in Japan.

EPA Requests Comments on Its Role in Advancing Sustainable Products

Pollution Prevention Act/Sustainable Products:

In today’s Federal Register, EPA solicited comments from stakeholders on potential roles for the Agency in advancing sustainable products.   According to the notice, EPA will consider the comments it receives and as well as information it gathers from other sources to help define its role and develop a strategy that identifies how the Agency can make a meaningful contribution to the development, manufacture, designation, and use of sustainable products.  Comments are due by October 19, 2010.

EPA requested input on the following questions:

1.   What do you see as the major policy and research challenges, opportunities, and trends impacting the development, manufacture, designation, and use of sustainable products?

2.   What do you see as EPA’s overall role in addressing these challenges and opportunities?

3.   In particular, how do you see EPA’s role in:

  • Assembling information and databases.
  • Identifying sustainability ‘‘hotspots’’and setting product sustainability priorities.
  • Evaluating the multiple impacts of products across their entire life cycle.
  • Defining criteria for more sustainable products.
  • Generating eco-labels and/or standards.
  • Establishing the scientific foundation for these eco-labels and/or standards.
  • Verifying that products meet standards.
  • Stimulating the market.
  • Developing end-of-life management systems (reuse, recycling, etc.).
  • Measuring results, evaluating programs.

EPA cites Section 13103(b) of the Pollution Prevention Act of 1990 (PPA) as its authority for this action.  That section requires the Administrator of EPA to facilitate the adoption of source reduction techniques by businesses and to identify opportunities to use Federal procurement to encourage source reduction.  For those who are less familiar with the PPA, 2010 is the Act’s 20th anniversary. 

It’s nice to see EPA allowing its use of the PPA authority to evolve in response to today’s market demands and societal needs.   However, the potential impact on market competition from Agency involvement in this area means that EPA’s notice is likely to receive a mixed reception.   Some will welcome it as an opportunity to help organize a market that seems crowded, disorganized, confusing, and misleading in some cases.  Others will prefer to let this rapidly evolving market mature without excessive government involvement.  And still others will worry about the regulatory consequences for products that are not deemed sustainable should the Agency promote a defined set of  criteria or support a particular eco-label.  Undoubtedly, many stakeholders will submit comments to sensitize the Agency to these concerns, as well as the potential trade-offs and other considerations.

So, what do readers think?  Should EPA attempt to set criteria identifying which products are “sustainable” or should the market be left to do that?  Again, comments are due by October 19, 2010.