Systematic slowdown: EPA indefinitely delays virtually all proposed actions to restrict chemicals under TSCA

Richard Denison, Ph.D., is a Lead Senior Scientist.  My colleague Ryan O’Connell assisted in the research described in this post.

By the time the long-awaited reforms of the Toxic Substances Control Act (TSCA) passed in June of 2016, nearly all stakeholders had come to agree that we needed a stronger federal chemical safety system, one that gave EPA more authority and more resources to act.  Only through this could public confidence in the system begin to be restored – to the benefit of both business and public health.

That was then.  A scant 18 months later, the law is being implemented by an Administration hell-bent on rolling back existing or indefinitely delaying new health protections, even those called for by large bipartisan majorities in Congress.  And the chemical industry?  So much for the influence of its better angels who supported reform.  It’s now going for broke, grabbing what it can while it can.[pullquote]Virtually every proposed action that would impose restrictions or conditions on specific chemicals has been either moved to the “long-term action” attic or simply deleted altogether.[/pullquote]

Yesterday, the New York Times and The Intercept ran stories spotlighting EPA’s decision to back-burner proposed restrictions on high-risk uses of three highly toxic chemicals – trichloroethylene (TCE), methylene chloride (MC), and N-methylpyrrolidone (NMP) – relegating them to the bureaucratic dustbin of “long-term actions.”  Not coincidentally, the chemical industry has strongly opposed all of the proposed restrictions.

But those aren’t the only proposed actions on chemicals for which this EPA has applied the brakes.  An examination of EPA’s two most recent semi-annual “unified agendas” – that trumpeted by the President last week, and the preceding one issued this past April – reveals a much broader and more disturbing pattern:  Virtually every proposed action that would impose restrictions or conditions on specific chemicals has been either moved to the “long-term action” attic or simply deleted altogether.  

Actions called for under the new TSCA that merely entail putting new processes in place and initiating reviews of chemicals have by and large gone forward and met applicable statutory deadlines.  The so-called “framework” rules that establish the processes by which EPA will identify, prioritize and assess chemicals came out roughly on schedule – though highly flawed and heavily tilted toward industry interests.

Forward motion is also preserved on a few chemical-specific actions mandated by the new law and subject to deadlines.  For example, a mandated rule establishing reporting requirements for the TSCA mercury inventory, and mandated reconsideration of EPA standards defining who qualifies to be a small manufacturer or processor, both remain under active status.

But then there are the proposed actions that would impose restrictions or conditions on specific chemicals.  Together with the proposed bans on TCE, MC and NMP I’ve already mentioned, over the past eight months, six actions EPA had proposed to use its authorities under the core provisions of TSCA (Title I) that Congress amended last year have either been shifted to “long-term action” status or removed altogether:

Shifted to long-term action:

• Trichloroethylene (TCE); Rulemaking Under TSCA Section 6(a); aerosol degreasers and spot cleaners
• N-Methylpyrrolidone (NMP) and Methylene Chloride; Rulemaking Under TSCA Section 6(a)
• Trichloroethylene (TCE); Rulemaking Under TSCA Section 6(a); Vapor Degreasing
• Significant New Use Rule (SNUR); Alkylpyrrolidone Products
• Trichloroethylene (TCE); SNUR for Non-Aerosol Spray Degreasers

Removed altogether:

• Polychlorinated Biphenyls (PCBs); Reassessment of Use Authorizations for PCBs in Small Capacitors in Fluorescent Light Ballasts in Schools and Daycares

[See our full list of TSCA Title I proposed actions and their fates here.]

To repeat:  What all of these proposed actions have all in common is that they would place limits on specific chemicals.

Another rule that is mandated by the new law but has yet even to be proposed also appears to have been delayed, as it, too, has relegated to long-term action:

• Procedural Rule: Review of CBI [Confidential Business Information] Claims for the Identity of Chemicals on the TSCA Inventory—Amended TSCA Section 8(b)(4)(C)

This rule’s delay is also very concerning, as it is supposed to drive forward EPA reviews of CBI claims to mask the identities of specific chemicals Unfortunately, the shift is consistent with the near total silence of the agency on the status of actions it is required to take under the new law to more closely scrutinize company requests to hide information from the public.

There is one apparent exception to the pattern I described.  It’s a mouthful:  a Significant New Use Rule applying to Long-Chain Perfluoroalkyl Carboxylate and Perfluoroalkyl Sulfonate Chemical Substances remains at the proposed rule stage.  The most infamous member of this group of chemicals is PFOA, DuPont’s so-called “Teflon chemical,” the production of which has largely been phased out in the U.S.  Note that, as proposed, one part of this rule would require companies to notify EPA before they could commence making this or certain related chemicals.

Why is this chemical-specific action still alive?  One reason may be that companies that voluntarily agreed to phase out production and use of PFOA don’t want other companies to be able to jump back into the market.  In addition, EPA’s agenda indicates it will re-propose the rule (in part to align it with the new TSCA’s requirements).  Given industry concerns voiced over parts of the original proposed rule, it may well be that EPA is keeping this action alive in order to make weakening changes in the re-proposal.  Stay tuned.

Let me sum up what our comparison has found:  Under the new TSCA this EPA, by and large, is moving forward on establishing general processes, initiating reviews of chemicals, and meeting direct mandates in the law that industry supports.

But almost across the board, the Trump EPA is slow-walking actions that would prohibit or limit companies’ ability to make and use chemicals.

Why is this happening?  A great clue was provided in yesterday’s article on the delayed chemical bans in The Intercept:

Contacted by The Intercept, Faye Graul, executive director of HSIA [the Halogenated Solvents Industry Alliance], took issue with the EPA’s evaluation of TCE and methylene chloride, which had been carried out under an older version of the Toxic Substances Control Act. She said she believes the chemicals should be considered under the updated version of that law, which was signed by Obama in June.  Re-evaluating the substances under the new law would add years to the process.

When asked if the organization had gotten what it wanted with the proposed delay on action on these chemicals, Graul replied, “That is exactly what we asked for, yes.”

But is this really what Congress asked for EPA to do just last year?