President-elect Joe Biden’s administration will pay more attention than the Trump administration to the concerns of people with higher-than-average chemical exposures as it decides whether those chemicals should be regulated, attorneys said.
In last month’s final presidential debate, Biden described the health fears faced by “frontline” communities—generally those in poor areas with a predominantly minority population that live near oil refineries and chemical manufacturers.
“It matters how you keep them safe,” he said. “You impose restrictions on the pollution.”
Incorporating concerns of highly exposed and susceptible people into risk evaluations, which determine whether a chemical must be regulated, is part of a broader, significant shift that five attorneys specializing in chemical policies expect from Biden’s Environmental Protection Agency.
His EPA likely will examine more ways both people and wildlife are exposed to chemicals and more ways chemicals can harm them, the attorneys said. The more scenarios the EPA examines, the greater chance that more uses of chemicals could be restricted or some could be banned.
Environmental Justice Concerns
Biden has signaled his desire to improve conditions in such places as Louisiana’s St. James Parish, which his campaign noted has seven of the ten U.S. Census tracts with the highest cancer risk due to “stunning rates of pollution.”
Biden said in his environmental justice proposal that he would direct the EPA to create a community notification program requiring industries producing hazardous and toxic chemicals to engage with communities on chemical releases and remediation efforts. The proposal is modeled after a bill (H.R. 6527) that Rep. Lisa Blunt Rochester (D-Del.) introduced in April.
It’s unclear how that proposal would work with the existing Emergency Planning and Community Right-to-Know Act (EPCRA), which is intended to inform local communities about hazardous chemicals that nearly industries use to prepare for chemical emergencies.
Attorneys differed on possible near-term chemical actions under Biden’s administration.
Biden’s EPA could act quickly and revive three rules that Obama’s EPA proposed, said Lawrence E. Culleen, a partner in Arnold & Porter Kaye Scholer LLP’s Washington office. He referred to two proposed rules (RIN: 2070-AK03; RIN: 2070-AK11) to restrict uses of a solvent called trichloroethylene (TCE), and a third proposal (RIN: 2070-AK46) to restrict another solvent, n-methylpyrrolidone (NMP).
A special section of the 2016 Toxic Substances Control Act amendments authorized the rules, which were proposed in the waning days of the Obama administration. They were shelved soon after President Donald Trump was elected, but they were never withdrawn.
Revising Risk Evaluations
Two attorneys focused on ways Biden’s EPA may proceed with the first 10 chemicals it’s been evaluating under amended TSCA.
The agency has concluded that four out of the first 10 chemicals pose unreasonable risks. And it proposed the same conclusions for the six remaining substances. Chemicals posing unreasonable risks must be regulated under TSCA.
Since the EPA has found or proposed to find that all 10 chemicals pose unreasonable risks, Biden’s EPA won’t likely increase the number of those chemicals the EPA will regulate, said Cynthia AM Stroman, a partner in King & Spalding LLP’s Washington, D.C. office.
But Biden’s broader risk analysis approach could affect the next group of chemicals the EPA is examining, she said. The agency has begun to examine 23 more chemicals’ risks.
Yet Biden’s EPA may revise some or all of the first 10 risk evaluations or supplement them with additional analyses, according to Steve Owens, a partner with Squire Patton Boggs LLP’s Washington and Phoenix, Ariz. offices.
Precedent exists for such a move, said Owens, who oversaw the EPA’s chemical and pesticide offices under President Barack Obama. The EPA already plans to do a supplemental analysis of discontinued asbestos uses.
The EPA’s move came because the U.S. Court of Appeals for the Ninth Circuit ruled last November that the agency violated TSCA with a policy that automatically disregarded old uses of chemicals even when those discontinued uses could expose people to the chemicals.
Since that ruling, environmental, health, and labor organizations have filed lawsuits challenging some final conclusions about two of the 10 chemicals the EPA has analyzed: a solvent, methylene chloride and three flame retardants, hexabromocyclodecanes (HBCD).
The EPA identified unreasonable risks for both chemicals, but it also identified uses that don’t warrant regulation. The agency did that by ignoring chemical exposures TSCA requires it to examine, the groups said. The resulting yet-to-be-developed regulations won’t protect people or the environment, they maintain.
The Biden administration’s decisions about the first 10 chemical risk evaluations—and court rulings about challenged risk conclusions—will shape the EPA’s regulations of the substances and its future chemical analyses.
More Resources Needed
Whatever decisions the EPA makes, its chemicals office needs more resources and staff as evidenced by deadlines the office has missed in releasing the first 10 chemical risk evaluations, several attorneys said.
The evaluations were due, at the latest, by June. The EPA didn’t immediately respond to a question about how many staff the office has. A proposed rule revising TSCA fees is under review by the White House.
Increasing the fees that chemical manufacturers pay would “ensure that EPA has the resources needed to conduct robust and comprehensive risk evaluations,” said Eve Gartner, managing attorney for the Toxic Exposure and Health Program at Earthjustice, a nonprofit legal law organization.