No, chemical industry, you can’t have your cake and eat it too (Part 1)

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

There is an extreme anti-regulatory and anti-science bandwagon moving fast through Washington, and much of the chemical industry seems to have jumped right on board.  We’re also seeing growing signs of industry pushback against even modest early actions EPA is taking to implement the Lautenberg Act, which reformed the obsolete Toxic Substances Control Act (TSCA) and passed with strong bipartisan support only last June.

[pullquote]Companies have every right to provide their input to EPA and argue the case for their chemicals in accordance with designated processes the agency has established for this purpose.  But resorting to tactics of obstruction and delay won’t fool anyone.  That’s the very thing that brought about the public crisis in confidence surrounding this industry in the first place.[/pullquote]

I’ll address these concerns in this and a second post to follow.  This post will address several attempts by some in the chemical industry to thwart EPA’s efforts to implement the new TSCA.  The second post will look at the industry’s main trade association’s unabashed – indeed, boisterous – support for a new Executive Order and multiple “regulatory reform” bills moving in Congress, which it embraces despite the fact that they would impose on EPA (and other agencies’) rulemakings – including those under the new TSCA – dozens of new knot-tying strictures, some of which the Lautenberg Act just got rid of.

This suggests that some in the industry have a very short memory:  What led the industry to finally support TSCA reform was its recognition that the public, other levels of government and the market itself have little confidence in the safety of its products or the ability of government to protect people and the environment from toxic chemicals.  Any relief it sought from its initial endorsement of a stronger federal chemical safety system will quickly dissipate if industry representatives – emboldened by the current political climate – take actions to stymie implementation of the new law and to buoy executive and legislative vehicles that would bring the regulatory system to a grinding halt.

So, let’s start with a few of the battles that some in the industry are waging to undercut recent EPA actions, authorized under the new TSCA, to restrict three highly toxic chemicals – trichloroethylene (TCE), methylene chloride (MC) and N-methylpyrrolidone (NMP) – the first such actions taken under TSCA in nearly 30 years. 

Consider the following:

Various industry groups bombarded the prior Administration’s regulatory oversight office (the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget), seeking to block EPA from even proposing rules that would restrict high-risk uses of these chemicals.  For example:

The NMP Producers Group consists of Ashland Chemical, BASF and Lyondell Chemical.  The Halogenated Solvents Industry Association consists of INEOS Chlor Americas, Inc., Occidental Chemical, Olin Chlor Alkali Products and Westlake Chemical.  Nearly all of these companies are members of the American Chemistry Council (ACC), which also met with OIRA about the MC rule.  (I’ll have more to say about ACC in my second post.)

The good news is that OIRA allowed EPA to propose the paint stripper rule (here), along with two proposed rules to ban specific uses of TCE (here and here), all of which are now out for public comment.  The bad news is that some in the industry continue to fight them in underhanded ways:

HSIA recently requested an extension of the comment periods for the TCE rules, par for the course for the industry with EPA proposed rules.  (Yesterday EPA did extend the periods, though not for as long as HSIA had requested.)  But what is so troubling about HSIA’s request is its rationale:  It is challenging the risk assessment that underlies the two proposed rules and pleads for more time to do so.

First, HSIA says it needs the additional time to be able to align its comments with a “request for reconsideration” (RFR) it intends to file after EPA rejected its earlier “request for correction” (RFC) of EPA’s 2014 TCE risk assessment.  HSIA had gone through the exact same rigmarole – an RFC followed by an RFR – attempting to topple the earlier robust toxicological review of TCE done by EPA’s Integrated Risk Information System (IRIS).

Second, HSIA is pulling one of the oldest tricks in the industry’s playbook:  arguing EPA should slow down so that HSIA can complete a study it is conducting to try to disprove a study EPA used in its TCE risk assessment.  Their tactic is truly over the top.

The study HSIA is seeking to disprove, which found that the fetuses of pregnant rats exposed to relatively low levels of TCE were at greater risk of having heart malformations, was published in 2003.  Let me repeat that date:  2003, nearly 14 years ago.  This begs the question:  What’s taken HSIA so long?  To argue that EPA should now slow down its rulemaking so HSIA can complete a study in an attempt to refute a 14-year-old study is simply ridiculous.  HSIA has repeatedly complained about this study, and EPA has repeatedly addressed its complaints; see here, for just one example.

It bears mention that EPA’s TCE risk assessment, based on dozens of published, peer-reviewed studies, documented high risks not only of fetal heart malformation but also kidney and liver damage, immunotoxicity, reproductive toxicity, as well as multiple types of cancer.

EPA has also listed TCE, MC and NMP among the first 10 chemicals to undergo full risk evaluations, and has been explicit that it is doing so in order to scrutinize additional uses not examined in the earlier assessments.  That has prompted the same industry representatives fighting the rules to argue that EPA should now withdraw the rules and fold those uses into the broader reviews it is about to undertake.  Yet Congress explicitly grandfathered in both those earlier assessments (completed in 2014 and 2015) and EPA’s authority to proceed now with regulations to restrict those specific high-risk uses; see section 26(l)(4).

Congress did so in part to help ensure EPA could take early actions to demonstrate the new law was working, rather than have no decisions be made for years after passage.  These companies are simply trying to buy time – up to 5 years or more – to keep selling their chemicals for these high-risk uses, not to mention trying to get additional bites at the apple to halt or weaken restrictions clearly needed to protect public health.

What kind of signal do these industry groups think they are sending to members of the public and to the marketplace if they succeed in delaying these rules for years?

Companies have every right to provide their input to EPA and argue the case for their chemicals in accordance with designated processes the agency has established for this purpose.  But resorting to tactics of obstruction and delay won’t fool anyone.  That’s the very thing that brought about the public crisis in confidence surrounding this industry in the first place.

My next post will discuss the vocal support by representatives of the chemical industry for an anti-regulatory executive order and multiple “regulatory reform” bills moving in Congress that would impose on EPA and other agencies dozens of new strictures, some of them the same shackles that the Lautenberg Act just got rid of.


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