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Industry Braces for Tougher Toxic Chemical Rules Under Biden EPA

Jan. 27, 2021, 11:01 AM

The nation’s toxic chemicals law will get a broader interpretation under President Joe Biden, triggering extra requirements for industry to protect more people, according to attorneys specializing in chemical laws.

The EPA will use its authority under the overhauled Toxic Substances Control Act, or TSCA, to make chemical manufacturers provide more information about toxicity, exposure, and other data, the attorneys said. A wide range of industries should prepare to turn over more information about chemical releases into the environment, the presence of those chemicals in consumer products, and worker exposure to industrial and commercial substances, the attorneys said.

Biden’s administration will be the first to restrict chemicals based on the first batch of 10 risk evaluations since TSCA was amended, said Mike Walls, a vice president at the American Chemistry Council, which represents chemical manufacturers.

These rules will make “downstream users"—companies that buy chemicals to make goods—more aware of TSCA’s potential impacts, said Erik C. Baptist, a partner in Wiley Rein LLP’s Washington office. They’ll wake up “to the degree TSCA affects their business and bottom line,” he said.

If companies have data they’re reluctant to turn over, as occurred during the Trump administration, they should prepare for subpoenas, said Steve Owens, a Squire Patton Boggs attorney who oversaw the EPA’s chemical and pesticide offices from 2009 to 2011. “You don’t want to do it all the time, but you do it when you need to,” he said.

But the EPA’s use of its new data-gathering authorities is largely “untested territory,” Walls said. Some companies may challenge specific testing requirements, he said.

Outside Influences

Three federal courts’ rulings buttress what Owens and other attorneys expect will be the Biden administration’s more vigorous efforts to examine and regulate chemicals. All three courts found the Trump EPA’s interpretation of the 2016 TSCA amendments required the agency to do more work.

  • In April 2019, the U.S. Court of Appeals for the District of Columbia Circuit ruled the EPA failed to make chemical manufacturers provide all the information the law mandated when they ask the agency to keep a chemical’s identify confidential.
  • In November 2019, the U.S. Court of Appeals for the Ninth Circuit ruled the agency couldn’t categorically exclude discontinued uses of chemicals from its risk evaluations.
  • In December, the U.S. District Court for the Northern District of California told the agency it should have make greater effort to get asbestos-use data to analyze that mineral’s risks.

Advocates are also more likely to have the new administration’s ear, said Herbert Estreicher, a partner in Keller and Heckman LLP’s Washington and Brussels offices.

Environmental, health, and labor groups will urge the EPA to examine more ways chemicals can affect people’s health and additional ways they can damage the environment, and to estimate more comprehensively the total exposure people and wildlife have to chemicals it’s examining, said Eve Gartner, an attorney focused on toxics and health at Earthjustice, a nonprofit environmental law group.

Broader EPA chemical analyses are likely both for new chemicals—ones that haven’t been made in or imported into the U.S.—and existing chemicals, which have long-standing industrial, commercial, and consumer uses, attorneys said.

‘Less Time, Paper, and Effort’

TSCA requires the EPA to determine whether new chemicals’ “intended, known, or reasonably foreseen” uses may put people’s health or the environment at undue risk of injury. Biden’s EPA likely will expand its views of those “reasonably foreseeable” uses, said Baptist, who served as deputy assistant administrator for law and policy in EPA’s chemical safety and pollution prevention office during the Trump administration.

A broader view of such uses almost inevitably means consent orders or significant new use rules, called SNURs, will restrict new chemicals’ production or imports, he said.

The EPA negotiates consent orders with a company seeking to make or import a new chemical, and imposes restrictions only on that company. SNURs impose the equivalent restrictions on any company that makes or imports the same chemical.

There’s also a practical reason why the EPA’s would prefer to restrict chemicals through consent orders, Baptist said.

“It takes less time, paper, and effort” to regulate a new chemical than to determine that it’s “not likely to present an unreasonable risk,” Baptist said. “Those not likely determinations are judicially reviewable,” he said.

‘Defies Common Sense’

The new administration will pick up ongoing risk evaluations of 23 existing chemicals and a group of four chemicals. Those chemicals have markets in the airplane, auto, construction, oil and gas, rubber, and other industries.

Baptist said the agency will face pressure to evaluate outdoor air emissions, water releases, and waste disposal of these chemicals. Those scenarios were largely excluded from the chemical risk evaluations the Trump administration carried out, he said.

Trump’s EPA assumed TSCA filled regulatory gaps and applied to situations that weren’t covered by statues governing air, water, and waste, he said. As a result, its risk evaluations omitted those broader exposures.

The agency’s analyses were “pretending” that Clean Air Act-regulated chemicals are no longer inhaled, said Richard Denison, lead senior scientist with the Environmental Defense Fund. “That’s just factually false” and “defies common sense, let alone the science of risk assessment,” Denison said.

EPA’s science advisers repeatedly highlighted these and other problems in the agency’s risk evaluations. Heeding rejected scientific recommendations is among the ways the new administration could improve the agency’s risk evaluations, he said.

Office Hiring

The chemicals office is better positioned to carry out a more aggressive approach than other parts of the EPA, which had staffing levels cut or vacancies left unfilled during the Trump administration.

The chemicals office has hired 16 scientists “in record time,” and 50 more positions are in the process of being filled, said Alexandra Dapolito Dunn, the former assistant administrator for chemicals and pesticides who stepped down Jan. 19.

Having new staff in the pipeline will help, said Owens, the former EPA assistant administrator. But training new employees will take time.

“TSCA is not a simple statute to understand,” he said. Still, “the career staff are incredibly talented people who know how to do tasks if told to do them,” and can expand EPA’s chemicals oversight at the same time, he said.

Balancing Priorities

The bigger challenge is balancing staff’s time between meeting ongoing day-to-day statutory requirements, working towards approaching deadlines, and revisiting past decisions made during the Trump administration, he said.

The new administration could launch “supplemental” risk analyses of the chemicals the Trump administration already examined, Owens said. These extra analyses would examine risks omitted from the 10 chemical risk evaluations completed by early January, he said.

But “it would be very difficult to have a complete do-over of the first 10 TSCA risk evaluations,” while also drafting proposed rules that would restrict all 10 chemicals, as the agency must do, he said.

Meanwhile, the EPA’s conclusions in four of the 10 final risk evaluations have been challenged. And there’s still time to challenge other final risk conclusions, so attorneys predict more litigation. “It’s early days” for amended TSCA, the American Chemistry Council’s Walls said.

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

To contact the editor responsible for this story: Rebecca Baker at rbaker@bloombergindustry.com

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