‘Chemicals of concern’ list stuck at OMB

Introduction

About 21 months ago, a proposed list of widely used chemicals that may pose health risks landed at the White House’s Office of Management and Budget for review.

It’s still there.

An attempt by the Environmental Protection Agency to create a “chemicals of concern” list — part of the agency’s larger plans to improve what administrator Lisa Jackson has called an outdated and dysfunctional system for regulating toxic substances — remains stuck in the OMB’s Office of Information and Regulatory Affairs (OIRA).

The proposal has sparked heavy resistance among industry groups, some of which have met with White House officials and argued that releasing the list could harm the economy. By executive order, OIRA should finish such reviews within 90 days — or, in some cases, 120. Instead, it’s had the EPA list for 638 days — and counting.

“The reason is political pandering,” said Rena Steinzor, a law professor at the University of Maryland and president of the Center for Progressive Reform. “OIRA is a politicized place where rules go to die.”

OMB spokeswoman Meg Reilly said in an emailed statement that the office doesn’t comment on regulations under review, but “it’s not uncommon for review periods to be extended for regulatory actions that require additional time for consideration of public comment and analysis by OMB and all the affected agencies.”

Since OIRA received the proposal on May 12, 2010, it has hosted eight meetings about the list — six of them with companies and industry groups. By comparison, OIRA officials have met once with public health and environmental groups and once with staffers for Democratic Sens. Frank Lautenberg and Sheldon Whitehouse, sponsors of legislation to reform regulation of toxic chemicals.

Big chemical companies seem most worried. ExxonMobil, for instance, argued that two of its chemicals used to make plastics flexible and durable shouldn’t be on the list. Other chemical industry powerhouses — from Dow Chemical Company to BASF Corp. and SABIC — have weighed in.

In a statement, the American Chemistry Council, the chemical industry’s main trade group, said: “We are concerned that EPA is creating a list of ‘chemicals of concern’ for potential regulatory action, without establishing consistent, transparent criteria by which these chemicals are selected. … It is OMB’s job to closely review the proposed action and consider any negative economic impact; we appreciate that officials are taking the time they need to fully study the matter. Failure to fully review such agency proposals undermines public and private sector confidence in the regulatory process and can seriously harm American innovation and jobs.”

Though OIRA hasn’t released the EPA list, the office has indicated that it includes Bisphenol A, found in many plastic products and believed to interfere with the hormone system; a group of eight phthalates, found in many plastics and cosmetics and believed to alter development of the male reproductive system; and certain polybrominated diphenyl ethers, used as flame retardants in many products and believed to cause thyroid problems and hamper brain development.

An EPA spokesman did not respond to requests for comment.

The rule itself would do little more than alert the public that the EPA believes certain chemicals may pose health risks and is trying to gather more information. But the U.S. Chamber of Commerce complained in a letter to OIRA that the regulation would amount to “blacklisting” of these substances, which could lead to “market disruptions and litigation.”

The Chamber also argued that even creating a list was “a tectonic shift in EPA policy” and should be suspended until EPA lays out specific grounds for evaluating whether a chemical “may present an unreasonable risk” — the standard for inclusion on the list.

Steinzor noted, however, that the 1976 Toxic Substances Control Act specifically grants the EPA the authority to create a list of troubling compounds. Companies are “screaming bloody murder,” she said, because they fear a backlash from concerned consumers and worry further regulation of named chemicals could follow.

In the more than 35 years since Congress passed the law, known as TSCA, the EPA hasn’t used its power to flag chemicals of concern. The current proposal is part of the agency’s attempt to make the most of its authority under TSCA, which has faced fierce criticism from environmental groups and some in Congress as out of date and ill equipped to address risks from the vast array of industrial chemicals now in use. Perennial attempts in Congress to overhaul the law have failed.

Soon after taking over as EPA administrator, Jackson signaled that the agency would focus on improving regulation of toxic substances. “Assuring chemical safety in a rapidly changing world, and restoring public confidence that EPA is protecting the American people is a top priority for me, my leadership team, and this Administration,” she said in a 2009 speech.

But many of the agency’s efforts, such as the “chemicals of concern” list, have encountered resistance — including from within the administration. “A very disturbing pattern has developed with OIRA’s review of EPA proposals to better ensure chemical safety: Long delays — far in excess of the mandated 90 days — have become routine,” Richard Denison, a senior scientist at the Environmental Defense Fund, said in a statement.

When OIRA does release the list, it still won’t be official. The public will get to weigh in, and the EPA can fine-tune the rule. Then it goes back to OIRA for another review.