Trump EPA, ACC and industry law firms colluded to weaken EPA new chemical safety reviews

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

[pullquote]Records obtained through FOIA reveal extensive Trump EPA-industry collusion in a key area of TSCA implementation.[/pullquote]You know how sometimes you know something is going on behind closed doors, but you just can’t prove it?  Well, this isn’t one of those cases.

At numerous points in recent years, we heard tell of secret meetings that Trump EPA political appointees were holding with the chemical industry and the bevy of law firms with industry clients.  A key focus was how to short-circuit the agency’s reviews of new chemicals that companies wanted to introduce into the market.

Readers of this blog will know of the many ways the Trump EPA sought to do the industry’s bidding and undermine the major reforms made to such reviews that were prominent among the 2016 amendments to the Toxic Substances Control Act (TSCA).

One recent episode had to do with changes the Trump EPA made, without any public notice, to the requirements it includes in so-called “consent orders” it negotiates with chemical companies when EPA identifies risks a new chemical may present once marketed.  Companies had been complaining to Trump officials at EPA that they found the language used in the orders to be too adversarial and legalistic – that is, too much like, well, an order.  A reporter at Inside EPA noticed that, last June, EPA had quietly replaced the old “boilerplate” language with new language more to industry’s liking.

The reporter noted, in passing and without providing documentation, that the new language had been “developed with ‘informal’ input from industry and others.”  In response, EDF and other groups sent a letter to EPA protesting the secretive process and lack of public notice.   That letter went unanswered.

At the same time, I filed a FOIA request for any correspondence between Trump EPA officials and industry trade associations or law firms regarding the boilerplate language.  In the request, I identified two specific EPA officials:

• Lynn Dekleva, until recently EPA’s associate deputy assistant administrator for new chemicals, who came to EPA straight from DuPont where her job had been to expedite EPA approval of DuPont’s new chemicals – a job she was now doing from the inside, only no longer just for DuPont.
• Erik Baptist, who until June 2019 had been a deputy assistant administrator in the agency’s TSCA office, having arrived at EPA directly from the American Petroleum Institute in June 2017, and is now at the law firm Wiley (formerly Wiley Rein).

My FOIA request also included the following industry-affiliated entities, each of which has strong financial interests in EPA’s reviews of new chemicals under TSCA:

• Bergeson & Campbell PC;
• Wiley Rein (or Wiley) LLP;
• Arnold & Porter (or Arnold & Porter Kaye Scholer) LLP;
• American Chemistry Council; and
• The TSCA New Chemicals Coalition.

As was so often the case with FOIA requests under the last administration, I then waited for a response.  And waited.  And waited.  Frankly, I didn’t expect the request to unearth much, figuring both EPA officials and the industry players would cover their tracks.

It took eight months, but responsive records were finally released to me a couple weeks ago, on February 25.  To say they are eye-opening, even to my jaded ones, would be accurate.

The flow of communications in both directions that the records reveal is more than I was expecting.  They reveal an extent of collusion extending well beyond the topic of what language EPA would use in its boilerplate for new chemical consent orders.  Equally remarkable is the lack of hesitation, again on the part of both EPA officials and industry, to make clear their intent to drive changes – behind closed doors – to the policies and practices of EPA’s new chemicals program.

Below are highlights from the released documents.

EPA vetted its draft boilerplate consent order language with industry players

On the consent order issue, EPA freely sent drafts of its language to the industry players and invited their comments on how it could be “improved.”  When sending the draft for comment to Rich Engler at Bergeson & Campbell in June 2019, Dekleva attached a version that included extensive comments most likely from Erik Baptist (comments with initials BE) and herself (comments with initials DL).  The gist of many of the comments was how to “soften” the language to make it sound less onerous:

• “Changing the way people perceive Section 5 orders is one of the primary drivers behind revising this boilerplate. It may get PMN submitters to ‘yes’ faster if we can change the perception of what these orders mean (i.e., they are essentially permits).”
• “‘Consent Order’ has the perception that it stems from an enforcement action and the new chemical is tainted unfairly before it even goes to market.”
• “Should this be stated in permissive language instead and then we list what the manner in which the company may manufacture a substance?” (changing language stating how the chemical may not be manufactured/used)

Also in June 2019, Lynn Bergeson emailed Dekleva to share “our thoughts on suggested changes to the notification review process and standard TSCA Consent Order,” noting:  “We look forward to your thoughts.”  Bergeson copied Alexandra Dunn, then-assistant administrator of the TSCA office at EPA.  Included was a 12-page memo focused mainly on how EPA should make further changes to reduce the delays in reviewing and approving new chemicals.

In February 2020, Dekleva emailed Martha Marrapese, partner at Wiley (formerly Wiley Rein), attaching an “order Draft Template” and welcoming Marrapese’s comments.  It should be noted that by this time Erik Baptist had moved from EPA to become a partner at Wiley (that happened in June 2019).

Top EPA officials collaborated with industry players on changes to specific consent orders

A number of the released records are from law firms representing industry clients who were seeking changes to the consent orders being developed to apply to their clients’ new chemicals or other accommodations, such as a speedier concluding of the review process.

In February and March 2019, Lynn Bergeson repeatedly emailed Erik Baptist requesting that resolution of EPA’s review of her client’s new chemical be expedited and providing a redline of changes she wanted made to the draft consent order.

The released records also show, starting in September 2019, an extensive exchange between Dekleva and Lawrence Culleen of Arnold & Porter on behalf of his client, the Semiconductor Industry Association’s Photoacid Generator (“PAG”) Substances Consortium.  The exchange starts with a request for a meeting between his client and then-Assistant Administrator Dunn, which followed an earlier meeting with her held that Spring.

That same record shows Culleen then emailing Dekleva about the Dunn meeting, indicating it is to focus on the “boilerplate” language of consent orders EPA would use specifically for the PAG substances, which was apparently under negotiation at that time.  He attaches “the draft ‘template’ that will be used for Consent Orders that would be issued to each company that has submitted substances within the scope of the category of new chemicals we’ve been discussing.”  He notes that “we have been requested to provide comments to EPA on the current draft before the end of business Tuesday — in advance of the date of our meeting with Alex.”

The exchange continues into October and November and then into early December and late December, with Culleen and Dekleva exchanging comments and revisions each is making to the PAG consent order language.  In early January 2020, Dekleva emails Culleen seeking “an update on the status of the Consent Order boilerplate review.”  After more emails, Culleen provides his client’s further comments to Dekleva in mid-January, noting his “understanding that the Agency is committed to engaging in collaborative discussions.”

—–

It is to be expected that some exchanges will typically occur between EPA staff and a company whose new chemical is to be subject to a consent order.  There are dozens of EPA staff dedicated to the review of new chemicals, including negotiating consent orders with companies.  But what is unusual here is the direct, sustained involvement of Dekleva, a senior political appointee, in the process, rather than the program managers conducting new chemical reviews.  Both the level of access these industry attorneys have – and use – to get the changes they want for their clients, and the receptivity of Dekleva to their requests, sheds considerable light on how the Trump EPA operated over these past four years.

One last note on consent orders:  The impact of these collaborations between the Trump EPA and industry interests is difficult to trace because EPA stopped making consent orders publicly available.  It used to provide links to them from its “status table” but stopped doing that early last year, and recently it removed all links to orders from the table, even to the ones that had been linked previously.  And the last order EPA posted to its ChemView database was one covering two chemicals that became effective in April of last year.  Since that one, EPA has actually finalized 50 consent orders – but not a single one of them is publicly available, whether through the status table or ChemView.

EPA solicited industry’s input on changes they want made to TSCA’s new chemical regulations

An unexpected bonus among the released records is their revelation that senior Trump EPA officials requested and held meetings with industry interests regarding revisions the agency was intending to make with the underlying TSCA new chemical regulations, and shared at least its initial concepts.  EPA’s intention to amend these regulations – which TSCA itself does not call for – first showed up in its regulatory agenda in Spring 2020 and then again in Fall 2020, with no public announcement.

In late October 2020, a branch chief in the New Chemicals Division of EPA’s TSCA office, emailed Christina Franz of the American Chemistry Council (ACC), the main trade association of the chemical industry, copying Lynn Dekleva, the head of the New Chemicals Division, and several other EPA staff.  The email stated (emphases added):

As a representative of the new chemicals industry subject to the Toxic Substances Control Act (TSCA), the Environmental Protection Agency (EPA) is seeking your early input on a proposed rule under development in the Office of Pollution Prevention and Taxies (OPPT). The rule would amend 40 CFR part 720 which specifies the procedures for EPA’s review of new chemical submissions under TSCA Section 5. The purpose of the rule is to improve the efficiency of EPA’s review process and to align its processes and procedures with the new statutory requirements under the Lautenberg Amendments. The rulemaking seeks to increase the quality of information initially submitted in new chemical notices and improve the Agency’s processes to reduce unnecessary rework in the risk assessment, and ultimately, the length of time that new chemicals are under review.

We would like to schedule a 30-minute session to hear important feedback from you on the proposal during this early stage of development.

Attached to the calendar invitation for the meeting was a one-page agenda that was titled “Updates to the TSCA Section 5 (New Chemicals) Procedural Regulations (40 CFR part 720):  Summary of the Notice of Proposed Rulemaking (NPMR) [sic] for Stakeholder Outreach.”  It notes that a main goal of the NPRM will be to “improve the PMN process so that its more predictable, transparent, and efficient,” noting various “Inefficiencies of the Current Section 5 Notice Review Process.”  It poses as an “Overall Question” for the meeting with ACC:  “What improvements do you recommend to address the inefficiencies in the new chemical notice review process described above?”

The meeting between EPA and ACC appears to have been held on November 13, 2020.

A virtually identical email invitation was extended to Lynn Bergeson, accompanied by the same agenda.  That meeting, to which company members of Bergeson & Campbell’s New Chemicals Coalition were invited, appears to have been held on November 10, 2020.

Perhaps not surprisingly, there is no mention in the materials for these meetings of any need to ensure that new chemicals entering commerce do not present risks to human health or the environment.  To our knowledge, no such meetings took place with any stakeholders other than the chemical industry and its lawyers.

ACC met with top EPA officials to discuss the “default project”

You might have noticed that the agendas for the meetings I just described refer to “default values” that EPA new chemical assessors use in the absence of actual data submitted by the company intending to manufacture a new chemical.  Industry has long bristled at the use of these defaults, which they consider too conservative, even as companies fail to provide the information EPA would need to avoid their use.

We had gotten wind that ACC had been working with the Trump EPA on ways to avoid EPA’s use of defaults.  Sure enough, the released records show an email exchange in early October 2020 and a meeting on October 8 between Dekleva and ACC’s Franz to have “a high level discussion on the default project.”

That meeting appears to have included numerous members of ACC’s “TSCA Section 5 Group.”  Copied on the meeting invitation are:  Hartigan, Suzanne; Howard, Brett; Braun, Robert; Catherine J Shelp; Mavian, Kari (K); Hoff, Mary Ann; Muellner, Mark; Willard, Travis L; Nicole Bechtold; Hunley, Jackie R; Roesh, Denise M; Marcia Levinson; Carrie Mcmichael; DOMUSH, HILARY L; Clark, Emily; Sandra Podolak; Joseph Skulsky; William Shade; Keller, Laura H; Grove, Scott Lee; Jon Gerber; Kerry Coy; and Elizer, Emily B.

Is there more?

Through the released records described here, we got a brief glimpse at what I suspect was even more collusion between Trump EPA officials and industry interests.  Over time we’ve heard there are other topics on which close collaborative work was underway, including around the question of when if at all testing would be required of chemicals under review by EPA.  In our FOIA, we did not query for these topics.  What might we have uncovered had we done so?

Conclusion

I am hopeful that we may be turning a new page in TSCA implementation, one that will put an end to this blatant favoritism bordering on corruption that plagued our chemical safety program under the prior Administration.