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2013-N.16
Reality Bites: EPA Withdraws Two Draft Chemical Rules

In an article published September 11, 2013, in Environmental Leader, Lynn L. Bergeson explored the implications of a recent EPA action: "The US Environmental Protection Agency (EPA) recently withdrew two draft regulations intended to enhance chemical oversight. Both initiatives had been languishing at the Office of Management and Budget (OMB) for years, long overstaying their customary (and mandated) 90-day review periods. The inferences and conclusions that can be drawn from EPA's decision to withdraw the rules are less noteworthy than the lack of debate over OMB's actions and the reasons for them.

"One rule would have implemented Toxic Substances Control Act (TSCA) Section 5(b)(4) and created a list of "chemicals of concern." Despite the clear Congressional authorization for such a list, many in industry feared the creation of yet another "list" of chemicals, each of which would likely have become instant pariahs and victims of deselection, commercial disruption, and tort liability. The other rule would have diminished the opportunity for chemical manufacturers to claim as confidential business information (CBI) (and thus prevent public disclosure) the chemical identity of substances identified in certain health and safety studies submitted to EPA.

"As is required by law and Agency practice, the rules were submitted to OMB for review years ago but had yet to see the light of day. Despite support from prominent Democrats and the environmental and public health activist communities, the rules appeared stuck on the road to nowhere."

At the end of the article, Ms. Bergeson concluded: "Debate needs to focus on improving the review process, making it more transparent, and holding the Office of Information and Regulatory Affairs (OIRA) more directly accountable for its decisions, including decisions to do nothing. Process is critical, and when it goes awry, or becomes hopelessly unpredictable, it ceases to be process. EPA would do well to engage stakeholders in a constructive debate on how to achieve its chemical management goals using vehicles other than those suggested by the withdrawn rules. We all would do well to think long and hard about how to improve the OMB/OIRA review "process" to ensure one exists, and that it aligns with the principles of transparency and accountability. A group of non-governmental organizations (NGO) has taken the process a step further, and has called upon the Senate Judiciary Committee's Subcommittee on Oversight, Federal Rights, and Agency Action to initiate a Congressional investigation of OIRA's actions. Reportedly, the Subcommittee will investigate the matter, which may help to clarify a bit more about the "process" that OMB follows." The full article is available online.


 
Upcoming Events

3rd Safer Consumer Products Summit National Policy Outlook, September 17 - 19, 2013, Washington, D.C. Bergeson & Campbell, P.C. is a proud sponsor.

Society for Chemical Hazard Communication Fall Meeting, September 25 - 29, 2013, Arlington, Virginia. Lynn L. Bergeson will speak on "Data Available Under REACH and Global Impact of that Data," and "Nanotechnology Regulatory Update."

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