Respondents to House Committee Identify FIFRA and TSCA Regulatory Actions as Impediments to Job Growth

On February 10, 2011, during a hearing on “Regulatory Impediments to Job Creation,” the House Committee on Oversight and Government Reform released a preliminary staff report entitled Assessing Regulatory Impediments to Job Creation. In December 2010, Committee Chair Darrell Issa (R-CA) sent letters to over 150 businesses, industry organizations, and think tanks asking for examples of existing and proposed regulations that have negatively impacted job growth, as well as suggestions on reforming identified regulations and the rulemaking process. Issa received almost 2,000 pages in response, and the Committee staff prepared the preliminary report based on the responses. The report is available online.

In the report, the U.S. Environmental Protection Agency (EPA) is noted for its “burdensome regulation.” The report states that respondents identified over 60 regulatory actions taken by EPA that may have a negative impact on job creation. While almost half the respondents who identified EPA regulations focused on EPA’s boiler heater maximum achievable control technology, greenhouse gas regulations, and National Ambient Air Quality Standards for ozone, respondents also called out the following Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Toxic Substances Control Act (TSCA) regulatory actions:

• Atrazine (Herbicide) Re-Evaluation (Potential): EPA began a re-evaluation of atrazine in 2009 although it was not due for re-evaluation until 2013. Atrazine is an agricultural herbicide primarily used on corn, sorghum, and sugarcane, and is applied most heavily in the Midwest;
• Cleaning Products Claims Policy under FIFRA (1996): Change in EPA guidance regarding cleaning of mold and mildew stains;
• Draft Guidance for Pesticide Registrants on Pesticide Drift Labeling (Pesticide Spray Drift), 74 Fed. Reg. 57166 (proposed on Nov. 4, 2009): EPA proposed guidance for new pesticide labeling to reduce off-target spray and dust drift;
• Endocrine Disruptor Screening Program for Chemicals (EDSP): EPA announced the initial list of chemicals to be screened for their potential effects on the endocrine system on April 15, 2009, and the first test orders were issued on October 29, 2009. EPA then developed a second list of chemicals for screening and published three related Federal Register notices on November 17, 2010;
• Nanopesticide Policy: In April 2010, EPA announced the development of a nanopesticide policy that would require the presence of a nanomaterial in a registered pesticide to be reported under the “unreasonable adverse effect” provision of FIFRA;
• Pesticide Permits — Proposed Clean Water Act National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit Program, 75 Fed. 13468 (proposed June 4, 2010): Proposed permit system that will be put in place by April 9, 2011;
• TSCA Chemical Action Plans: In September 2009, EPA announced a comprehensive strategy for chemical management including “action plans” for 12 chemical families;
• TSCA Proposed Rule to Amend the Inventory Update Rule (IUR), 75 Fed Reg. 19830 (proposed Aug. 13, 2010) (to be codified at 40 C.F.R. pt. 704, 710, 711): EPA is proposing to amend the reporting requirements;
• TSCA Nanoscale Materials/Products Regulation: To ensure that nanoscale materials are manufactured and used in a manner that protects against unreasonable risks to human health and the environment, EPA is pursuing a comprehensive regulatory approach under TSCA; and
• TSCA Proposed Test Rule for Coal Tar and Coal Tar-Derived Chemicals.

Observations

Among the almost 2,000 pages of submissions, EPA is mentioned almost 3,500 times, almost always cited as a barrier to job creation. As noted above, certain of the EPA activities are cited more often (e.g., greenhouse gas proposals), and those would be expected to be the most likely subject to any further Committee activity. The submissions to the Issa Committee, however, will also provide a roadmap of concerns to the other Committees of the House, the authorizing Committees and Appropriations Committee, for example. What is less clear is what any of these Committees will do with the information.

In the House, partisan response to the submissions will invite both a defense of their actions by the Administration, and could ironically limit the willingness of the Administration to be more flexible in some cases to avoid the appearance of yielding to partisan attacks. At the same time, the Democratic majority in the Senate presumably will continue to provide a friendlier forum for the Administration to offer its perspective. The divided Congress may also result in some pressure for EPA to be even more aggressive in targeted policy areas given that legislative agreements are even less likely now than in the past.