Posted on June 9, 2017 by Lynn L. Bergeson
Candidate Trump’s views on chemical management were not well articulated, if they were articulated at all, in sharp contrast to his views on climate change. Whether the silence signaled support for the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg), which extensively amended the Toxic Substances Control Act (TSCA) upon its enactment last June, or something else was an open question before now. Several developments suggest U.S. Environmental Protection Agency (EPA) Administrator Pruitt is firmly behind implementing the new law on schedule. What is less clear is how key policy issues will be decided.
TSCA is the federal law that authorizes EPA to regulate imported, manufactured, and processed industrial chemical substances. Lautenberg extensively amended TSCA, adding significant new definitions, expanding testing authority, regulating new and existing chemicals, expanding information reporting, narrowing confidential business information protection, and modifying preemption opportunities, among other changes. Further information is available on our TSCA Reform website: http://www.lawbc.com/knowledge-resources/tsca-reform-news-info.
The unexpected election results inspired considerable concern in some quarters regarding whether Lautenberg’s implementation would succumb to the anti-regulation rhetoric emanating from the Trump White House, torpedoing the hard fought gains reflected in the new law’s passage. These fears were exacerbated with news of President Trump’s 2018 budget, which proposes a jaw-dropping 31 percent reduction in EPA funding (from $8.05 billion in 2017 to $5.65 billion in 2018). Under this plan, 3,200 EPA employees would lose their jobs, and some 50 EPA programs would be scrapped.
To date, there has been no public change in the Office of Chemical Safety and Pollution Prevention’s (OCSPP) course of conduct regarding TSCA implementation. Acting Toxics Assistant Administrator Wendy Cleland-Hamnett is an experienced, able leader, well respected by staff and diverse stakeholders alike. Nancy B. Beck, Ph.D., DABT, was brought on May 1 as the principal Deputy Assistant Administrator for OCSPP. Dr. Beck holds a doctorate in environmental health and for the past five years has served as the senior director for Regulatory Science Policy at the American Chemistry Council.
The Pruitt Administration can be expected to drive EPA regulatory and science policies. Mr. Trump is an outspoken critic in other contexts, such as with regard to climate change and Clean Water Act issues, of what he described as the Obama EPA’s “manipulated” (fake?) science to support a political outcome and, of course, vowed to “fix” this. Under Lautenberg, EPA is required to promulgate the TSCA “framework” rules, TSCA Inventory notification, procedures for prioritizing chemicals for risk evaluation, and procedures for chemical risk evaluation, by mid- June 2017. It is difficult to predict how exactly the new Administration can be expected to influence the many critically important policy issues at play in these proposals. Dr. Beck’s recent arrival at EPA, however, significantly enhances the front office’s bandwidth in science policy issues, and may suggest a policy bent decidedly more business-friendly than the proposed rules crafted under the Obama EPA.
That the Administration will seek to influence chemical regulatory policy is clear as the stakes are high and the consequences for the domestic chemical industry too great to be ignored. How, for example, will “weight of evidence” be defined; must all “conditions of use” be included in the scope of every Section 6(b) risk evaluation; how should the “reasonably foreseen” provision in the definition of “conditions of use” be applied; will the composition of the Science Advisory Committee on Chemicals change and when? These are just a few of the many consequential decisions that this Administration will decide concerning Lautenberg’s implementation, some of which will almost certainly be litigated. In that the three framework rules and the scope of the risk evaluations for the ten chemical substances identified on December 19, 2016, will be out soon, we should have a much clearer sense of the chemical policies the Pruitt Administration supports.
Interesting questions also arise from application of the Executive Orders (EO) President Trump has issued with respect to their impact on TSCA implementation. EO 13,777, Enforcing the Regulatory Reform Agenda, issued on February 24, 2017, and EO 13,771, which directs the head of every agency to designate an officer to “oversee the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms,” could significantly impact TSCA implementation. Of particular relevance is EO 13,771, requiring that agencies identify two rules for repeal for every new regulation the agency proposes. The imperatives of the EOs must be viewed in the context of the cold, hard fact that an expectedly unfriendly Trump Office of Management and Budget will be in charge of regulatory reviews of each regulation, and significant EPA policies. Application of the EO to the TSCA implementation could burden the Office of Pollution Prevention and Toxics’ already strained resources to an unsustainable degree, hamper its ability to devote its limited resources to implementing the new law, and seriously disrupt the chemical manufacturing community by holding hostage urgently needed new chemicals. EPA is urged to stay focused and on target as failure to implement the new law timely and credibly will invite an erosion of the trust the public was beginning to place in the federal government’s ability to manage chemical risks since Lautenberg’s bipartisan enactment.