U.S., companies oppose major safety-law change

By Alexander Lane

U.S. officials and chemicals industry lobbyists are fighting a proposed European Union law that would fundamentally change its approach to safety, forcing manufacturers to conduct extensive tests on chemicals they want to use or make.

Chemicals companies, the largest U.S. concentration of which are in New Jersey, would have to seek approvals for 30,000 chemicals already in use, similar to standards facing pharmaceuticals companies.

"It's going to be an overwhelming task," Joe Mayhew, vice president of regulatory affairs for the American Chemistry Council. "There are a lot of tests in there, with very exhaustive requirements."

In Europe and the United States, chemicals makers get the benefit of the scientific doubt. Government regulators must show a chemical is harmful if they wish to ban it, and where science is uncertain, government doesn't act. The proposed regulations are a flash point in a larger debate about the "precautionary principle," a philosophy that says if science isn't certain of whether a substance is harmful, it shouldn't be allowed.

The EU embraced the principle during 2000, and has employed it to fight U.S. imports of genetically modified crops and hormone-treated beef. Environmentalists and industry experts agree the proposed chemicals law, called Registration, Evaluation and Authorization of Chemicals, would be the most aggressive application yet of the precautionary principle.

The Bush administration has joined with the chemicals industry in fighting the proposal. U.S. diplomats were instructed to protest the proposal, calling it "costly, burdensome and complex," according to a memo from Secretary of State Colin Powell that was first reported by the Chicago Tribune and confirmed by the U.S. State Department. "(The proposed law) would be grounded on the problematic 'precautionary principle,'" Powell wrote. "U.S. exports in most industrial sectors -- totaling tens of billions of dollars -- could be impacted by the new policy."

Wilfried Schneider, a spokesman for the Washington delegation of the European Commission -- the EU's executive branch -- said the proposal is sensible environmental policy.

"It's a principle of common sense, to Europeans anyway," Schneider said. "I think it's a cultural difference. If there is a scientific uncertainty as to the nature of a risk, we say to those in public office charged with protecting public health that they have a duty to respond and not wait until their fears are realized, until the worst is happening."

"I think Americans are more daring," Schneider said. "As long as there's no known risk, they go ahead."

New Jersey's 793 chemicals manufacturers employ 93,900 workers, more than any other state's chemical sector, according to the American Chemistry Council. Annual production reaches $26 billion, including $7.2 billion in exports, the council found in a 2002 study.

Environmentalists say the U.S. chemicals industry could survive and even thrive under the proposal, since the regulations would encourage innovation, removing an incentive to use old, outdated chemicals that have been grandfathered under modern testing requirements.

"It's a common-sense approach to managing chemicals," said Daryl Ditz, a chemical engineer and senior program officer in the World Wildlife Fund's toxics program. "The way we've been doing this is letting them go, then getting a bad lesson, then trying to mop up later."

Ditz and other environmentalists have long pushed for more precaution in government regulation. Time and again, they say, inadequately tested chemicals have turned out to be dangerous. Ditz cited examples like polybrominated diphenyl ether, a flame retardant used in foam furniture padding and the plastic housing around computers and television sets. It has recently been detected in mothers' breast milk, fish and sewage sludge. Scientists aren't certain of its toxicity.

The proposed legislation runs 1,200 pages, but it is often boiled down to four words: "No data, no market." The 30,000 or so existing chemicals, more than 95 percent of which predate the testing requirements of the Toxic Substances Control Act of 1976 -- the foundation of U.S. chemical regulation -- would have to be tested and approved during an 11-year period ending during 2012.

Mayhew said he expects the proposal to become law in some form, though that could take two years or longer. Its immediate cost to the U.S. chemicals industry would be $7 billion, with long-term costs rising to many times that, he said.

"The cost of compliance is one thing, but when you lose products because of a lack of authorization the cost would be really large," Mayhew said. "The numbers begin to multiply."

A better approach, he said, would be risk-analysis. That has long been the foundation of environmental policy, and involves selecting specific substances or practices thought to be dangerous and subjecting them to extra scrutiny.

John Graham, the regulatory czar at the Office of Management and Budget in charge of evaluating regulations, is one of the architects of risk analysis. He formerly headed the Harvard Center for Risk Analysis, and in a speech to European regulators referred to the precautionary principle as "a mythical concept, perhaps like a unicorn."

Peter Montague, Director of the New Brunswick-based Environmental Research Foundation and a major proponent of the precautionary principle, said risk analysis has never worked well. Industry introduces substances far faster than scientists can understand them, and regulators are left trying to catch up to environmental and health problems long after the damage has been done.

"That seems to be the picture of environmental contamination, the knowledge of ill effects seems to be growing much faster than the regulatory system is able to gain control of these materials," Montague said. "We have to prevent these problems rather than manage them after the fact."

Alexander Lane covers the environment. He can be reached at alane@starledger.com or (973) 392-1790.