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October 01, 2013
TSCA drafts die at OMB

In an action that cheered the chemical industry and exasperated environmental groups, the EPA withdrew two draft regulations that would have required the industry to release more information on certain chemicals and made it more difficult to claim information about chemicals as confidential. 

EPA’s withdrawal decisions appear to have been forced by the federal Office of Budget and Management (OMB), which held up the drafts for years after the EPA submitted them for OMB’s review. 

Richard Dennison, a scientist with the Environmental Defense Fund (EDF), claims there is a “clear requirement” that OMB complete its reviews of draft rules within 90 days after receipt.  But the American Chemistry Council (ACC) says the actions contemplated in the drafts became unnecessary because of subsequent EPA initiatives.

Chemicals of concern and CBI

Both drafts would have implemented sections of the Toxic Substances Control Act (TSCA).

  • Under TSCA Section  5(b)(4), the EPA was seeking, in fall 2010, to add a category of eight phthalates, a category of polybrominated diphenyl ethers (PBDEs), and bisphenol A (BPA) to a list of chemical substances that present or may present an unreasonable risk of injury to human health or the environment.  Conforming changes to TSCA Section 12(b) export notification requirements would also have been made.
  • Under TSCA Section 14(b), the fall 2011 draft rule would have excluded the identity of chemicals described in safety studies from treatment as confidential business information (CBI) unless that information disclosed processes used in the manufacturing or processing of a chemical substance or mixture, or, in the case of a mixture, where release of the data disclosed the portion of the mixture comprising a particular substance.

Public discussion

According to a blog entry posted by Dennison on the EDF website, these “modest steps” were intensely opposed by the chemical industry.  Dennison does concede there is “room for debate over both the legal and scientific bases for and merits of EPA’s proposed actions.”  Still, Dennison is most disturbed by OMB’s inaction, which effectively denied the public the chance to have a voice in the rulemaking.

But the ACC believes the need for the Section 5(b)(4) rule was eliminated by EPA’s Work Plan Chemicals program.  In this 2012 initiative, the Agency identified 83 chemicals for priority review.  Assessments of 5 of those substances have been completed and 23 additional assessments are under way.

Withdrawal of the Section 14(b) draft was also the “right decision,” says the ACC, in light of the “progress” the EPA has made via its partnership with industry through the CBI Declassification Challenge program and the Agency’s efforts to require greater upfront substantiation of CBI claims.

TSCA reform bill

The ACC supports the Chemical Safety Improvement Act (CSIA), the bipartisan bill to reform TSCA.  The bill has advanced further in Congress than any previous proposed TSCA amendments, but has run into strong opposition from environmental advocates, which makes its passage as currently written doubtful.  Dennison and the EDF favor aspects of the bill but are pushing for changes that would, among other things, provide more protection for vulnerable communities and place limits on federal preemption of state authority to act on chemicals when the federal government does not do so.

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