Reality Bites: EPA Withdraws Two Draft Chemical Rules

by | Sep 11, 2013

bergeson, lynn, B&CThe 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.

Chemical manufacturers praised EPA’s decision to withdraw the rules. Other stakeholders expressed displeasure.  The Environmental Defense Fund (EDF) decried the decision, noting that both rules have been the subject of “intense opposition and lobbying from the chemical industry” and even regulatory efforts at TSCA reform are being “stymied” at every turn.

The decision reignites a long-festering debate over the scope of OMB’s Office of Information and Regulatory Affairs’ (OIRA) authority to review rules and the time it takes to do so.  These two rules illustrate dramatically the largess that characterizes some of OIRA’s reviews, and the virtual “pocket veto” effect OIRA’s deliberative process has on regulatory initiatives.

So why did EPA withdraw the rules?  This is a fair question, but certainly not the only one, or even the most important.  Politically, even the most casual of Executive agency observers would have concluded that these rules were going nowhere.  For EPA to continue to endure the political spanking it was getting day in and day out served no purpose and may well have contributed to the decision to pull the plug.

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