EPA trying to wrap up packaging standard

Exemptions cloudy The FQPA exemption was based on the fact that most anti-microbial products for household and commercial use are nonhazardous. So the EPA shouldn’t worry about how toilet-bowl cleaners and packaging line sanitizers are packaged. Congress gave the EPA three yardsticks to use in writing an exemption. An anti-microbial product should be exempt if it is: a household, industrial, or institutional product; if it is not subject to the EPA solid-waste law called RCRA; if it does not present an “unreasonable adverse effect on the environment.” The first two categories gave no one heartburn. But the third, or at least the way the EPA wants to interpret it, certainly did. The agency categorizes pesticides and anti-microbial products into four toxicity categories, from I to IV, with I being the most toxic. In its October 1999 proposal, the EPA said it believed that most Toxicity I anti-microbials, and that includes 70% of the market, could present “unreasonable adverse effects” and should therefore be subject to the container requirements. That caused an industry blast-off. “The industry was extremely unhappy with that,” admits Nancy Fitz, the EPA official who wrote the proposed rule. Eileen Moyer, director of regulatory affairs for Reckitt Benckiser, Wayne, NJ, says her company “strongly objects” to the EPA interpretation. She says that an anti-microbial that is in the Toxic I category does not necessarily pose a risk to the environment. That determination must be made based on factors other than chemical toxicity.

Exceptions to exemptions John DiFazio, senior counsel to the Chemical Specialties Manufacturers Assn. (CSMA), states that throughout the entire debate in Congress on the FQPA, the anti-microbial exemption was predicated on just the first two factors. “At the last minute, in an act of good faith, the regulated community allowed the insertion of an exception ‘to prevent an unreasonable adverse effect on the environment,’ a rigorous legal standard,” explains DiFazio. “It is unconscionable of EPA not only to disregard the clear intent of Congress, but also to renege on the agency’s final negotiating position.” The Biocides Panel of the Chemical Manufacturers Assn. expresses even more poetic indignation. It calls the EPA interpretation “a dramatic evisceration of the statutory exemption.” Exemptions from the container standards for agricultural pesticides are also an issue, though not quite as fiery. In the October 1999, proposal, the EPA said that pesticides meant for agricultural use would be subject to the packaging standards only if they met one of three criteria: the product is classified either Tox I or Tox II; the product is sold in a container size holding more than either 5 L or 5 kg; the product is intended for outdoor use; and the label includes at least one of the specified environmental hazard statements. The flashpoint here, as is the case for anti-microbials, is the environmental factor. Companies like Aventis and Dow AgroSciences have no problem with the 5 L/kg cutoff, or the Tox I/II application. But Levy of Aventis, says that environmental hazard statements don’t necessarily mean that a pesticide poses problems for either ground water or wildlife. That is because the warning is dictated by the product’s half-life, meaning how long it persists in the soil. But the application rate for an agricultural chemical may be so low that the half-life is beside the point. In addition, the EPA negotiates these environmental hazard statements on a product-by-product basis. “Sometimes a company will accede to an environmental warning in return for the EPA making a concession of its own,” Levy explains.

Simple standards Given all the abuse the EPA is taking over the issue of exemptions, the agency can be excused for wanting to make the standards themselves as simple as possible. And what could be simpler than telling manufacturers that they should meet the packaging standards that the DOT already has in place for hazardous materials? In fact, industry groups were the ones that requested the agency adopt DOT standards rather than trying to reinvent the wheel. These standards cover compatibility, closures, venting, and filling limits and are modified depending on the hazard level of the chemical. Packaging Group I represents materials of greatest hazard; Group III is the least hazardous. Most pesticides are in Group III; far fewer are in II, and hardly any are in I. To these standards, the EPA would add some specific packaging standards for “pesticides” such as to prevent dripping and require pouring in a continuous, cohesive stream—the so-called non-“glug” requirement. Some pesticides, however, are in none of these groups because they are so safe. The EPA would make these pesticides (if they are sold in packages larger than 5 L/kg) subject to Group III packaging standards. This would hook in a lot of pesticides and anti-microbial products that have been subject to few regulations in the past. These manufacturers have not been forced to review their packaging because they were not considered DOT hazardous materials. Requiring pesticides not now covered by DOT regulations to comply with Class III packaging standards (affecting companies like Englehard, for example) would create a “large increase in potentially applicable testing requirements,” admits EPA. Also, because of DOT test requirements, certain pesticides that would have had their packaging tested under the 1994 proposal would need even more tests under the October 1999 proposal adopting the DOT system. That is particularly true for nonrefillable containers and minibulk containers. The EPA’s Fitz says the agency expects to finalize the pesticide container rule within the next year. c