{"id":9679,"date":"2020-06-25T10:08:27","date_gmt":"2020-06-25T15:08:27","guid":{"rendered":"http:\/\/blogs.edf.org\/health\/?p=9679"},"modified":"2024-02-12T11:02:28","modified_gmt":"2024-02-12T16:02:28","slug":"a-psa-for-the-trump-epa-the-chemical-industry-isnt-your-client-for-the-new-chemicals-program","status":"publish","type":"post","link":"https:\/\/blogs.edf.org\/health\/2020\/06\/25\/a-psa-for-the-trump-epa-the-chemical-industry-isnt-your-client-for-the-new-chemicals-program\/","title":{"rendered":"A PSA for the Trump EPA: The chemical industry isn\u2019t your \u201cclient\u201d for the new chemicals program"},"content":{"rendered":"

Richard Denison, Ph.D.,\u00a0<\/em>is a Lead Senior Scientist.<\/p>\n

[UPDATES ADDED 8-6-20: See insertions of bracketed italicized text below.]<\/em><\/p>\n

[pullquote]So much for the Trump EPA\u2019s constantly ballyhooed commitment to transparency under TSCA.<\/strong><\/em>[\/pullquote]I blogged a few short weeks ago<\/a> about just how brazen EPA officials have become in aligning themselves with the chemical industry when it comes to the agency\u2019s review of companies\u2019 requests to commercialize new chemicals under the Toxic Substances Control Act (TSCA).<\/p>\n

Yet it just keeps getting worse.\u00a0 <\/p>\n

Thanks to an article in Inside EPA<\/em><\/a> by a reporter who came across a buried addition to EPA\u2019s new chemicals web pages, we learned that EPA had quietly \u201cupdated\u201d the boilerplate language it uses when it negotiates a consent order with a company that sets the terms for market entry of a new chemical.\u00a0 As I have described before<\/a>, those orders are increasingly rarely issued at all by EPA, with the great majority of chemicals cleared for market entry absent any conditions at all.<\/p>\n

Without any announcement or notice, EPA posted the new language here<\/a> on April 21.\u00a0 EPA states: \u201cThe updated version of the boilerplate is expected to be used for Orders starting in April 2020.\u201d<\/p>\n

I had heard quite some time ago that revisions to the order language were being considered, with some in industry complaining that the language EPA was putting in the orders was too adversarial and legalistic \u2013 that is, too much like, well, an order.<\/p>\n

In my earlier blog post<\/a>, I cited comments by Dr. Lynn Dekleva, EPA\u2019s associate deputy assistant administrator for new chemicals, who came directly to EPA from DuPont where she was responsible for getting the company\u2019s new chemicals approved by EPA.\u00a0 One of Dekleva\u2019s first assignments upon arriving at EPA was to \u201cstreamline\u201d the consent order language.\u00a0 The fruits of her labor appear to be what the agency quietly posted in April and now says it\u2019s using.<\/p>\n

The new language is indeed heavily streamlined, eliminating important detail that provides, for example, for enforceability \u2013 a concern that EPA\u2019s own Inspector General raised lust last month<\/a> in the context of TSCA consent orders issued even before the new changes.<\/p>\n

EPA quietly vetted the new language with industry<\/strong><\/p>\n

As also reported by Inside EPA<\/em>, the agency took it upon itself to \u201cinformally\u201d vet the new language with industry representatives, to the exclusion of other stakeholders.\u00a0 You\u2019d almost think the agency has forgotten that the industry it is supposed to regulate is not its \u201cclient.\u201d<\/p>\n

In response to these disturbing disclosures, EDF, Safer Chemicals Healthy Families and several other NGOs sent a letter last Friday<\/a> to Alexandra Dunn, head of EPA\u2019s Office of Chemical Safety and Pollution Prevention, calling on EPA \u201cto suspend use of the new order, explain how it changes the old order and why these changes were made, and afford an opportunity for public comment.\u201d<\/p>\n

So where are the consent orders using the new language?<\/strong><\/p>\n

Given EPA\u2019s statement that it expected to begin using the new boilerplate language in April, I went to look at some recent consent orders to see if they used the new language.\u00a0 Links to the orders are supposed to be provided in two places:\u00a0 On the \u201cstatus table<\/a>\u201d listing EPA\u2019s decisions on new chemicals; and in ChemView<\/a>, the agency\u2019s repository for information it receives and decision documents it issues under TSCA.\u00a0 Here\u2019s what I found (or more accurately, did not find):<\/p>\n

Status table<\/u><\/em>:\u00a0 On the status table EPA notes that it generally provides a link to a consent order within two weeks of its effective date; see the circled text below:<\/p>\n

\"\"<\/a><\/p>\n

[UPDATE ADDED 8-6-20: After our blog post, EPA changed the text on this webpage to remove the reference to making consent orders generally available within two weeks.\u00a0 The language nows says:\u00a0 “<\/em>Please note:<\/strong>\u00a0 Access to documents relating to TSCA Section 5 Actions is available at\u00a0regulations.gov<\/a>.”\u00a0 This link is utterly useless:\u00a0 It goes to the top page of a site that applies to regulations across the <\/em>entire Federal government, making it all but impossible for a user to actually locate consent orders or any other documents relating to new chemicals under TSCA.]<\/em><\/p>\n

The status table lists a number of premanufacture notices (PMNs) subject to final consent orders in recent months.\u00a0 But the most recent such listing in this table that has an actual link to the order itself<\/em> is for one with an effective date of well over a year ago.\u00a0 This was the consent order for a group of PMNs \u2013 numbered P-16-0151 through 0155 \u2013 that became effective on May 8, 2019<\/em><\/strong>.<\/p>\n

ChemView<\/u><\/em>:\u00a0 When provided, the links in the status table take the user to the consent orders themselves in ChemView, so I looked there to see if any more recent ones were available.\u00a0 The most recent order posted there was one covering two PMNs that had an effective date in April of this year, but a number of additional PMNs that EPA\u2019s status table indicates have final orders with effective dates in April as well as May \u2013 all of them much longer ago than two weeks \u2013 were not accessible.\u00a0 So, not only are these orders not linked to from the status table, they aren\u2019t available through ChemView either.<\/p>\n

I then inquired with EPA as to why these consent orders are not being made available to the public.\u00a0 I was told that EPA stopped posting orders to ChemView in April, due to \u201cfunding issues,\u201d and that EPA expected this situation would continue, i.e., no orders would be posted to ChemView or links added to the status table, at least through the end of the fiscal year (September 30).<\/p>\n

[UPDATE ADDED 8-6-20: As of this date EPA is still not posting new consent orders to ChemView.]<\/em><\/p>\n

This timing is troubling:\u00a0 Just as EPA started using its \u201cstreamlined\u201d language in the specific consent orders it is negotiating with companies, EPA has rendered it impossible for the public to access those orders.\u00a0 So much for the Trump EPA\u2019s constantly ballyhooed commitment to transparency under TSCA.<\/p>\n

Moreover, it appears that when EPA\u2019s TSCA office experiences \u201cfunding issues,\u201d the first thing to go are services that benefit the public interest and shed light on EPA decisions.\u00a0 There appears to be no such cutback or slowdown in EPA\u2019s relentless effort to speed up new chemical approvals, which my last blog post made clear the Trump EPA considers job number one<\/a>.<\/p>\n

EPA\u2019s lame excuse for not publicly vetting the new language<\/strong><\/p>\n

In response to the letter we sent to EPA, Inside EPA<\/a><\/em> reports that EPA responded as follows (emphasis added):\u00a0 \u201cPer EPA\u2019s customary approach<\/em> to developing orders under our regulatory programs, the agency did not solicit public comments on the updated version.\u201d<\/p>\n

Yet EPA did<\/em> solicit industry comments.\u00a0 This is the crux of the problem:\u00a0 EPA\u2019s mindset is that the new chemicals program is purely bilateral between it and the chemical industry, with no room for the public (or workers or affected communities), and that mindset is now on steroids under the Trump administration.\u00a0 While this is a longstanding problem, the changes made to the new chemicals provisions of TSCA through the 2016 reforms were intended to address this.<\/p>\n

This episode reveals that this EPA, especially its conflicted political hires and appointees, think nothing of \u2013 and think there is nothing wrong with \u2013 allowing or inviting the industry into the room while locking out the public.\u00a0 Numerous times over the last several years it has come out that policy or decision documents on new chemicals were shared with companies to get their \u201cinformal feedback\u201d with no public notice it was even being done, let alone an opportunity to provide feedback.\u00a0 See here<\/a> and here<\/a>.\u00a0 This new episode is only the latest example.<\/p>\n

Lastly, this excuse is particularly rich, coming from an EPA that claims it is all about transparency and the need for public vetting<\/a> when it comes to any sort of guidance document EPA uses.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Richard Denison, Ph.D.,\u00a0is a Lead Senior Scientist. [UPDATES ADDED 8-6-20: See insertions of bracketed italicized text below.] [pullquote]So much for the Trump EPA\u2019s constantly ballyhooed commitment to transparency under TSCA.[\/pullquote]I blogged a few short weeks ago about just how brazen EPA officials have become in aligning themselves with the chemical industry when it comes to …<\/p>\n","protected":false},"author":100,"featured_media":9462,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[44,56093,56096,114108],"tags":[113966,68,56108],"coauthors":[],"class_list":["post-9679","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-policy","category-industry-influence","category-omboira","category-tsca","tag-consent-orders","tag-epa","tag-new-chemicals"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/9679","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/users\/100"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/comments?post=9679"}],"version-history":[{"count":1,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/9679\/revisions"}],"predecessor-version":[{"id":12913,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/9679\/revisions\/12913"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/media\/9462"}],"wp:attachment":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/media?parent=9679"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/categories?post=9679"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/tags?post=9679"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/coauthors?post=9679"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}