Some Back Idea For New TSCA Process Rule But None Expect EPA Action

July 15, 2020

Some industry representatives and former EPA officials are backing the concept behind a petition urging EPA to write a new framework rule to “tailor” the agency’s process for writing risk management rules under the revised TSCA, but neither the industry representatives nor the former officials expect the agency to grant such a petition.

“If I were in a position to advise the administrator, I would recommend that he acknowledge the petitioners’ concerns but deny the petition,” Gary Timm, former chief of EPA’s Chemical Testing Branch, tells Inside TSCA.

“I believe that EPA has a large burden to conduct risk evaluations and risk management under section 6 and cannot spare the resources to develop a procedural rule at this time. [The Toxic Substances Control Act (TSCA)] established a timetable for various actions, and the first few risk management actions can’t be delayed to wait for a procedural rule,” he says.

Rather than developing a procedural rule “in the abstract,” Timm adds, the agency could write a “more effective” framework rule after it gains experience writing risk management rules. “The agency should propose risk management rules for several chemicals representing different risk management challenges, and then using that experience and the public comments on the proposed rules, develop the procedural rule,” he says.

Like Timm, others question if the agency has the resources to craft such a rule now given the raft of other statutory obligations it is already struggling to address. “Given resource constraints and the press of its statutory obligations for timely completing required risk management rules, EPA may wish to delay consideration of the need for the development of such a rule until such time as it gains experience and identifies efficiencies in undertaking its mandated requirements under amended TSCA, including on prioritization, risk evaluation, and risk management,” the law firm Bergeson & Campbell says in a July 10 memorandum.

“Furthermore, experience in developing and implementing risk management actions under amended TSCA would help inform the development of any risk management procedural rule,” the law firm memo adds.

Others doubt that EPA even has legal authority to issue such a rule. “I don’t see any authority in TSCA for the rules they are asking for,” says Robert Sussman, a former top EPA official in the Obama and Clinton administrations who now represents environmentalists.

He notes that the law gives EPA a mandate to issue framework rules governing its risk prioritization and evaluation processes but is silent on a risk management framework. As a result, he says he does not see the legal basis for granting such a petition.

Bergeson & Campbell agrees with Sussman that TSCA section 21 does not provide authority for EPA to write such a procedural rule but notes that, even so, the petition does not seek to use alternative authority in the Administrative Procedure Act (APA) to seek such a rulemaking. “In this light, it is interesting that the petition was not also submitted as an APA petition for a rulemaking. Under 5 U.S.C. Section 553(e), federal agencies must give interested persons “the right to petition for the issuance, amendment, or repeal of a rule,” the firm’s memo says.

At issue is a TSCA section 21 petition submitted by a coalition of groups representing downstream chemical users that ask EPA to write a framework procedural rule that will guide upcoming risk management regulations the agency is required to write to address any unreasonable risks it finds in its chemical evaluations.

Industry Petition

Backers of the petition say the rule is needed to codify the “tailored” approach the law requires when the agency crafts its regulations.

Risk management rules “are not required for those [conditions of use] that are found not to present an unreasonable risk,” the June 3 petition says. “While this point seems apparent -- since it would violate TSCA and the intent of Congress for EPA to regulate conditions of use that do not present an unreasonable risk -- codifying this approach in a framework rule avoids any misunderstanding.”

The petition was filed just as EPA is preparing to craft the first risk management rules under TSCA, starting with rules to address risks posed by methylene chloride.

But Sussman takes issue with the petition, charging it has an “agenda of circumscribing and narrowing” how EPA will exercise its discretion when it writes section 6 risk management rules.

They are “asking EPA to make decisions that are very favorable” to industry and to “prejudge section 6 rules.” There is no benefit to EPA or the public in doing that, he adds.

While the petition’s backers say it is procedural, Sussman argues it is actually asking EPA to clarify how it interprets many key provisions of the statute. “That is not procedural, its substantive,” and it is “a little disingenuous” for the petitioners to describe it as procedural.

He adds that even conceptually, the petition is not needed because the statute provides specific requirements for EPA. “It is not a situation where Congress has said, ‘You have a lot of discretion [so] figure out how to exercise it.’” He says section 6 is “pretty detailed” and so there is no need to “constrain EPA before it writes individual rules.”

And, he adds, “it’s not reasonable to tell EPA before its starts working on individual chemicals they have got to tell the world exactly how they will interpret the law.”

Timm agrees, noting that while the petition makes “some good points which should be considered by EPA in developing risk management rules, . . . most are already requirements of TSCA. A procedural rule laying out how EPA would address its responsibilities under section 6 may be useful, but it shouldn’t slow down implementation of the law.”

The former chemical testing branch chief also cautions that the Trump administration is unlikely to be a fair arbiter of spelling out the agency’s TSCA authorities, given its past support for industry.

“Beside the practical aspects of developing a procedural rule now, I am not confident that this administration will develop a rule, which will bind the agency to the future implementation of its authority under TSCA section 6, without putting its thumb on the scale,” he says.

He cites the case of the White House decision, eventually backed by the agency’s science advisers, over-ruling EPA’s selection of cardiac birth defects as the adverse effect to consider in its draft evaluation of trichloroethyelene (TCE). Instead, the agency selected a less-sensitive effect, a move that could result in less-aggressive risk management actions should the agency eventually finalize such an approach.

“We don’t want to see things like this incorporated into a procedural rule,” he says.

Timm also cites the case of EPA’s proposed rule limiting the use of scientific data that is not publicly available in policy decisions. “Based on experience to date, I am concerned that a procedural rule issued by this administration might overly limit the agency and tilt the playing field in favor of industry,” he adds.

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