Stymied at every turn: EPA withdraws two draft TSCA proposals in the face of endless delay at OMB

Richard Denison, Ph.D., is a Senior Scientist.

The Environmental Protection Agency (EPA) has withdrawn two draft rules it had developed under authority of the Toxic Substances Control Act (TSCA).  EPA originally sent the proposed rules to the White House for its review way back in 2010 and 2011. 

Despite a clear requirement that White House reviews of draft proposed rules be completed within 90 days, the Office of Information and Regulatory Affairs (OIRA) [which is part of the Office of Management and Budget, OMB] sat on these two draft proposals for 1,213 and 619 days, respectively.  Faced presumably with the reality that OIRA was never going to let EPA even propose the rules for public comment, EPA decided to withdraw them. 

The two proposed rules that were just withdrawn would have:

  • Designated as “chemicals of concern” three classes of chemicals for which evidence is more than sufficient to warrant such a designation:  bisphenol A (BPA), a category of phthalates, and a category of polybrominated diphenyl ethers (PBDEs).  By listing a chemical as “of concern,” EPA may obtain, and provide to the public, more information about the chemical than it is typically able to access.
  • Clarified, consistent with the language of TSCA, that health and safety studies on pre-market chemicals submitted to the agency cannot be claimed to be confidential business information (CBI), and that those studies along with the identity of the subject chemical should be made publicly available.  This information is vital to ensuring the public’s and workers’ right to know about chemicals to which they may be exposed.

EPA has clear statutory authority to take each of these proposed actions.  (We have blogged about each proposal before – see our earlier posts here and here.)  And each proposed action would provide EPA, the public and the market with information needed to identify chemicals that could pose risks – without restricting in any manner the production or use of the subject chemicals.

Both proposed rules were subject to intense opposition and lobbying from the chemical industry, despite its public rhetoric that EPA should have greater ability to gather and make public more safety-related information and to identify and act on chemicals found to be of concern.  This is not the first time, and undoubtedly won’t be the last, that the industry says one thing and does another.

While there is room for debate over both the legal and scientific bases for and merits of EPA’s proposed actions, the tragedy here is three-fold.  First, these modest steps EPA proposed to take are among the few it has the ability to take under the highly constrained authority it has been given under TSCA.  Second, by making more information on chemicals’ safety publicly available, the actions would have helped the market to make better decisions in the absence or in advance of direct regulatory intervention by EPA.

Third, and perhaps most disturbing, OIRA’s flaunting of its requirement to complete reviews of such proposals within 90 days (with an allowance for one 30-day extension; see Section 6(b)(2) of Executive Order 12866) has effectively denied the public its voice in the rulemaking process.  By blocking EPA from even proposing the rules and taking public comment – which would have been the proper venue for airing questions and concerns from all stakeholders – OIRA has taken on the unauthorized role of serving as judge and jury.  And because none of its reasons for blocking the proposed rules has or will be made public, that outsize role flies in the face of basic principles of transparency and democracy.

For its part, EPA continues to struggle to make what progress it can in each of the areas that these proposed rules aimed to advance.  It developed and is trying to implement action plans for each of the chemicals that were to have been listed as chemicals of concern in its proposed rule as well as seven others.  It is seeking to finalize the first batch of its promised assessments on so-called work plan chemicals, in the face of unrelenting efforts by the industry to interfere in and slow down the process.  And it has made some progress in increasing public access to critical chemical information and limiting rampant misuse by industry of confidential business information (CBI) claims.

It’s essential that EPA continue – and be supported in its efforts – to undertake and complete this critical work.

But even these efforts are being stymied, delayed or weakened at every turn by a chemical industry intent on limiting EPA activity under current TSCA, even as it claims to support expanding that authority in the context of TSCA reform.  And, as evidenced by EPA’s withdrawal of two proposed rules, in the absence of clear requirements and deadlines for making decisions and taking action under TSCA, we can expect that OIRA will continue to constrain EPA’s efforts to address the risks to human health and the environment posed by toxic chemicals.


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