Staff shortages are impeding the EPA’s court-ordered lead-paint analyses and its oversight of new chemicals, the agency’s top chemicals official told Bloomberg Law.
A dozen more toxicologists, biologists, and other staffers are needed to augment the nearly 70 employees in the Environmental Protection Agency’s new chemicals division, said Michal Ilana Freedhoff, assistant administrator for chemical safety and pollution prevention.
The single employee working on lead paint has other tasks to perform on top of the health and soil standards and lead-paint definition that a federal court ordered the agency to update, Freedhoff said. The U.S. Court of Appeals for the Ninth Circuit in May sided with environmental groups who demanded the updates.
The EPA can’t hire staff because it and other agencies are operating under a continuing resolution that doesn’t expire until Feb. 18. And the chemicals office’s budget is frozen at 2016 levels because the Trump administration never sought additional money to implement new mandates in the 2016 amendments to the Toxic Substances Control Act, Freedhoff said.
“Staff are running on fumes” after having worked for an administration that expected employees to cancel vacations and work nights and weekends, she said.
Despite staff shortages and many statutory deadlines, Freedhoff has directed staff to redo chemical risk evaluations completed before President Joe Biden took office. That means the agency expects to miss several chemical regulatory deadlines that she—as a senior aide to Sen. Edward Markey (D-Mass.)—fought for during the TSCA amendment negotiations.
It’s ironic to miss deadlines that she once championed, Freedhoff acknowledged. But if the EPA doesn’t develop scientifically and legally defensible rules, she said, it could repeat its early 1990s experience “when the agency proposed a big and protective rule that a court threw out because it didn’t meet the statutory requirements.”
Freedhoff referred to the U.S. Court of Appeals for the Fifth Circuit’s Corrosion Proof Fittings ruling that overturned the agency’s 1989 rule banning most uses of asbestos, a known carcinogen. The court said “the EPA failed to muster substantial evidence to support its rule.”
TSCA became “a broken law” after that ruling, Freedhoff said. The agency stopped restricting chemicals in commerce for more than 20 years even when it had evidence they could be harmful.
The law and the Biden administration’s decision to redo the first 10 chemical risk evaluations carried out under the statute were driven by the goal of protecting people, Freedhoff said. For example, the agency needed to examine risks communities near facilities might face from breathing or drinking an evaluated chemical, she said.
The Trump administration omitted those exposures, which could leave vulnerable people unprotected, she said.
Freedhoff anticipates soon getting more resources. The House Appropriations Committee approved (H.R. 4372) $109 million for the agency’s toxics risk review and prevention work in fiscal year 2022. That would be a $15.5 million increase above this year.
Still, it will take time to recruit, interview, hire, and train staff, she said.
PFAS Data Collection
Meanwhile, staff are evaluating the risks of 33 chemicals in commerce, working on more than a dozen proposed and final TSCA and Toxics Release Inventory rules, and reviewing hundreds of new chemicals to decide whether they can be made in or imported into the U.S.
Early this year, the EPA plans to release a proposed approach to examining the risks faced by people living near factories or other sites releasing chemicals. And it will share extensive information about the volume of chemicals in commerce, their uses, and the number of companies making them, Freedhoff said.
One major final rule would require companies that have made, imported—and possibly ones that have used—per- and polyfluoroalkyl substances (PFAS) in any year since Jan. 1, 2011, to provide the agency information so it knows what’s been in commerce, including structural and other details about the chemicals.
Congress, which ordered the EPA to issue the rule, is concerned about the family of PFAS—often called “forever chemicals"—because some persist for decades in the environment and are linked with cancer and other illnesses.
Companies that use PFAS-containing parts will be challenged to comply with EPA’s proposed rule, because it would seek data even if only tiny amounts of the chemicals are used, Mark Bacchus, a senior manager with Toyota Motors North America, said at a chemicals conference last month.
The proposal also doesn’t list the chemicals for which the EPA will require information, but provides a chemical formula companies are to use to decide whether they’ve made or used a PFAS, he said.
The EPA plans to use webinars, listservs, and other outreach to alert industries to the regulation, and it welcomes suggestions to reach more stakeholders, Freedhoff said.
But “it’s not really supportable to say that you don’t have any idea what’s in your product, and you have no idea how you might go about finding out,” Freedhoff said.
New chemicals have been another challenging area since June 22, 2016, when the Frank R. Lautenberg Chemical Safety for the 21st Century Act that amended TSCA became law. The amendments required the EPA, for the first time, to explain its reasoning for allowing new chemicals to be made or imported.
The new chemical requirements kicked in the day the statute became law even though implementing procedures didn’t exist, causing delays in agency decisions.
Since then, chemical manufacturers have reported continued delays, inconsistent reviews, and a dramatic increase in the amount of time and data needed to secure approval for a new chemical.
Environmental health groups have sued the agency for allegedly withholding information that the statute and EPA’s regulations say should be publicly available.
“In the last couple years, the agency really has made more information available more quickly about new chemicals” in a public database called ChemView, Freedhoff said.
Information often is posted within a couple of days of the agency receiving a pre-manufacture notice, in which a chemical manufacturer seeks approval of a new chemical, she said.
“But I absolutely agree that we can do better,” she said. “And, I hope that with additional resources, we will.”
More resources also will help the agency “do our job to make sure that new chemicals can be used safely and also do our job more quickly,” she said.