EPA Lets Two Toxic Chemicals Fall Into Regulatory ‘Black Hole’

Oct. 1, 2020, 10:01 AM

The EPA has failed to regulate or review two fragrance ingredients considered to be among the most hazardous chemicals in production—and among those Congress directed the agency to address faster than any others.

The Environmental Protection Agency’s lack of action over the past four years, since Congress overhauled the Toxic Substances Control Act, has drawn the ire of outside observers and even a senator who led that overhaul effort. Sen. Tom Udall (D-N.M.) said the delay runs “afoul of the spirit and plain reading of the law.”

The 2016 TSCA amendments required the EPA to fast-track the process to regulate a set of high-hazard chemicals known as PBTs, because they persist in the environment, bioaccumulate—or build up in the food chain—and are toxic.

The fragrance ingredients were among those red-flagged. The more widely produced of the two—described by manufacturers as having a woody scent—is present in air fresheners, laundry detergent, fabric softeners, and personal care products, according to an EPA database.

A chemical manufacturer in 2016 requested performing a risk evaluation of the ingredients. But the EPA has taken no public action to start regulating or evaluating the chemicals.

EPA Says Action in ‘Near Future’

The inexplicable delay “is bizarre,” said Steve Owens, an attorney who served as EPA’s assistant administrator for chemical safety and pollution prevention during the Obama administration.

“What’s really baffling is the agency’s lack of transparency,” said Owens, now a partner in the Phoenix and Washington, D.C. offices of Squire Patton Boggs LLP. Overall, “the TSCA program has done a very good job in terms of being transparent about what it’s doing.”

“This really stands out as an aberration from that,” Owens said. “It’s really a black hole.”

EPA spokeswoman Molly Block said the agency is working with a group of chemical manufacturers to develop a complete risk evaluation request, and expects to receive it “in the near future.”

TSCA doesn’t contain a deadline for the EPA to act. But the agency may have violated the Administrative Procedure Act by not following Congress’ order to act quickly, said Eve Gartner, an attorney for the nonprofit environmental law group Earthjustice.

“EPA’s many-year delay is leaving consumers exposed to chemicals that Congress considered the worst of the worst,” she said.

Limited Off-Ramps

Congress created a special section of TSCA, 6(h), creating the speedy regulatory process for certain PBTs and allowing only two off-ramps.

One is if the EPA found that people and wildlife had such limited exposure to a high-hazard chemical that it didn’t need to be regulated. The other is if a manufacturer disagreed with a chemical’s high-hazard designation and offered to pay the EPA to evaluate the chemical’s risks.

Of the seven chemicals the EPA deemed as high-risk in 2016, four of them needed regulating while one lacked the exposure needed for regulation, the agency concluded. Final regulations controlling these other chemicals are on track to be released by the end of this year, Alexandra Dapolito Dunn, EPA’s assistant administrator for chemical safety and pollution prevention, recently told Bloomberg Law.

International Flavors & Fragrances Inc., a fragrance manufacturer, disputed the high-hazard label for the remaining two chemicals and offered to pay for the risk evaluation in 2016. The company declined to comment when reached by Bloomberg Law.

EPA Discretion

Once the EPA gets a complete risk evaluation request from manufacturers, it will follow the procedures its rule describes for such requests, Block said. That includes allowing the public to comment on the agency’s plans to evaluate the chemicals, she said.

Mark N. Duvall, a principal attorney leading Beveridge and Diamond PC’s chemicals group, said the delay makes sense. TSCA gives the EPA discretion on when it initiates manufacturer-requested risk evaluations, he said.

“Given EPA’s current workload and resources, delays are understandable,” Duvall said.

Some delay in the EPA’s process was reasonable, Owens acknowledged. The TSCA amendments required companies to request a risk analysis in the fall of 2016, before the EPA issued rules laying out its risk evaluation procedures and the fees chemical manufacturers would pay when asking for their chemical to be examined.

But if lawmakers knew the EPA would take no action four years after a company raised its hand, offering to pay to evaluate a high-hazard chemicals, “I believe there would have been some pretty significant concern,” Owens said.

Senator Says Regulation ‘Overdue’

One lawmaker, Udall of New Mexico, said the agency “has run afoul of the spirit and plain reading of the law that was forged to reform TSCA in an overwhelmingly bipartisan manner in 2016.”

Udall teamed up with then-Sen. David Vitter (R-La.) to secure passage of the Lautenberg Chemical Safety for the 21st Century Act that overhauled the chemicals law.

Though Congress made PBTs a priority, the EPA and industry have dragged their feet to keep these dangerous chemicals on the market and avoid a risk evaluation, Udall said by email.

“It’s long overdue for EPA to have added the two chemicals to its proposed expedited action rule, or to have proposed an additional rule covering the two chemicals,” he said.

Robert M. Sussman, an attorney with Sussman and Associates, which represents an environmental health coalition called Safer Chemicals Healthy Families, said the EPA has allowed the two fragrance ingredients to fall into a regulatory void.

“This is a serious violation of the law for chemicals that present serious health and environmental concerns because of their PBT properties,” he said.

Indefinite Delay?

One of the two fragrance ingredients, an ethanone identified on business documents as Chemical Abstract Service (CAS) No. 54464-59-4, is produced at such low volumes it might not have warranted regulation, Gartner, from Earthjustice, said.

But companies in 2015 made or imported between 10 million and up to 50 million pounds of the other chemical, an ethanone CAS No. 54464-57-2, according to the EPA.

“I don’t think Congress would have allowed to EPA to take some PBTs and defer regulation indefinitely,” Gartner said.

Asked whether her organization or another interested group would file a lawsuit challenging the lack of action on these two chemicals, Gartner replied: “I hope so.”

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bloombergindustry.com

To contact the editors responsible for this story: Rebecca Baker at rbaker@bloombergindustry.com; Anna Yukhananov at ayukhananov@bloombergindustry.com

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