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.
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.
Substantively, EPA may have concluded that the need for a chemicals of concern list was filled by EPA’s TSCA Workplan Chemicals initiative, created since the chemicals of concern rule was submitted to OMB. Under it, some 83 chemicals have been fingered for review creating in effect a de facto list of chemicals of concern. While no single initiative has rendered the rule limiting CBI claims potentially unnecessary, EPA has implemented a number of changes that invite this conclusion.
A critical question that curiously is not being asked here goes to process, namely what is the process that lead to this result. Regardless of the technical merits of the draft rules or whether they are defensible, OMB’s lack of process, transparency, and accountability is disturbing. That draft rules can be more or less scuttled in the black box of OIRA through the expedience of inaction in apparent violation of deadlines mandated under Executive Order 12866 should be troubling to everyone. Yet, the public debate has focused almost exclusively on whether EPA is “retreating” from chemical regulation and what inferences can be drawn from EPA’s decision. Under the circumstances, EPA’s decision is sensible, if not overdue. EPA leadership in the chemical management program is smart, and likely reassessing how best to achieve the goals of chemical oversight in the context of the political realities of the day. One of those realities is that when EPA leadership and the inner circle of White House operatives are not on the same page, EPA loses. Another reality is that these power struggles are exactly the reason why stakeholders increasingly insist upon statutory deadlines in legislation as embedded deadlines are less amenable to pocket vetoes. Not surprisingly, the near total absence of deadlines in the Chemical Safety Improvement Act, the bipartisan measure intended to amend and improve TSCA, has been the cause for angst among chemical stakeholders of all walks especially those reflecting upon the fate of these two draft rules.
Debate needs to focus on improving the review process, making it more transparent, and holding 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.
Lynn L. Bergeson is Managing Partner of Bergeson & Campbell, P.C. (B&C), a Washington, D.C. law firm focusing on conventional, nanoscale, and biobased industrial, agricultural, and specialty chemical product regulation and approval matters, environmental health and safety law, chemical product litigation, and associated business counseling and litigation issues. She is president of The Acta Group, with offices in Washington, D.C., Manchester, UK, and Beijing, China, and President of B&C Consortia Management, L.L.C. (BCCM) with offices in Washington, D.C.
