Chemical Rules Could Be Foiled by Regulatory Oversight Bill

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By Pat Rizzuto

Chemical regulations Congress ordered the Environmental Protection Agency to issue could be foiled by a House-approved regulatory oversight bill, say advocates from two environmental organizations.

Congressional inertia could prevent either body from voting on chemical rules within the deadlines imposed by pending legislation and the Toxic Substances Control Act amendments of 2016, said Richard Denison, lead senior scientist for the Environmental Defense Fund. Eve Gartner, an attorney with Earthjustice, shared Denison’s concern.

The pending legislation to which they referred, Regulations From the Executive in Need of Scrutiny (REINS) Act (H.R. 26), gained House approval Jan. 5 on a largely party-line vote. It was introduced Jan. 4 in the Senate (S. 21) with no further action so far.

The logistical fences the bill would require agency regulations to jump over could mean the EPA wouldn’t meet deadlines set by the Lautenberg Chemical Safety Act (Pub. Law No. 114-182), Denison and Gartner said. The Lautenberg Act, which amended TSCA, passed both chambers with near unanimous, bipartisan support.

Sen. James M. Inhofe (R-Okla.), who toiled to secure passage of the TSCA amendments, doesn’t buy the argument that the REINS Act will delay mandated chemical regulations.

“Every time Congress tries to put the brakes on the over-regulation that comes out of the EPA, [opponents] use things like `it’s going to be too time-consuming,” Inhofe told Bloomberg BNA. “I just don’t believe it.”

Legislators understand the need to approve EPA’s chemical regulations, Inhofe said. Opponents of the REINS Act will argue it would impede chemical regulations as a means to block the regulatory oversight bill, he said.

Measure Sets Deadlines

The REINS Act, introduced in the Senate Jan. 4 by Sen. Rand Paul (R-Ky.) and backed by 30 Republican cosponsors including Inhofe, includes many deadlines.

For example it would give Congress up to 70 legislative days to vote to approve major rules issued by regulatory agencies. Without an affirmative vote in each chamber, the rules “shall not take effect,” the REINS Act says.

House votes could be taken only on the second and fourth Thursday of each month, according to REINS.

Chemical regulations the EPA would issue to comply with the TSCA amendments could be among those requiring congressional approval under the pending bill, Denison said.

The REINS Act covers major rules. Major means not only rules with an annual effect on the economy of $100 million or more but also rules expected to cause significant cost or price hikes, or to have significant adverse effects on competition, employment, investment, productivity or innovation.

A single legislator could hold up Senate approval of a rule, Denison said. Yet, the TSCA amendments require the agency to publish three final regulations by June 2017, he said. The three rules would establish the procedures the agency would use to:

  •  identify chemicals in commerce,
  •  determine which of those chemicals should be scrutinized due to potential health or ecological harms they could cause and
  •  evaluate the chemicals to determine whether they pose such risks.

The amendments set additional deadlines by which the EPA must complete its risk evaluations and issue regulations to curb identify risks.

Chemistry Council Backs REINS

Chemical regulations could be blocked, regardless of whether REINS Act supporters—such as the American Chemistry Council—intend such a result, Denison said.

The American Chemistry Council, which represents major U.S. chemical manufacturers, issued a Jan. 10 statement applauding the House for passing two regulatory oversight bills.

“The ‘REINS Act’ and the ‘Midnight Rules Relief Act’ are important parts of a broader effort to modernize federal rulemaking, where greater transparency and accountability is sorely needed,” the chemistry council said.

The council declined more than six Bloomberg BNA requests for it to elaborate on its statement. These requests included seeking comment as to whether the council’s support for the REINS Act had anything to do with concerns about the rules that are required under the TSCA amendments, which it also has supported.

Maybe, Maybe Not

Judah Prero, an attorney with Sidley Austin LLP who used to work for the chemistry council, told Bloomberg BNA: “Generally speaking, the reg reform bills should not slow down EPA, were they to pass and be enacted into law.”

The focus of most of regulatory oversight bills is on rules that would have significant economic price tags attached, Prero said by e-mail.

“The TSCA implementation bills really just affect how EPA does business,” he said. “Therefore, I would not expect the implementation bills to be effected by the various reg reform bills that have been introduced.”

Gartner said the thrust of the REINS, Midnight Rules and related bills needs to be recognized.

The goal is to require agencies to issue “least burdensome” regulations, she told Bloomberg BNA.

Congress amended TSCA and specifically cut the original law’s requirement that the EPA issue the least burdensome chemical regulations, Gartner said.

It eliminated that requirement because the cost-benefit analyses required to prove a particular rule would be the least-burdensome hurdle the agency was unable to leap over, she said.

Nixing the Nano Rule?

The Midnight Rules Relief Act, H.R. 21, which the House passed Jan. 4, could result in EPA’s nanoscale materials rule (RIN:2070-AJ54) being overturned, Gartner said.

The EPA published that data-collection final rule Jan. 12 more than 10 years after agency advisers urged it to require more toxicity and other data about nanoscale chemicals (82 Fed. Reg. 3641)

Whether industry accepts or fights the nanoscale rule will be the first of a number of tests showing whether chemical manufacturers are serious about their support for strengthening TSCA, Denison said.

“It took EPA 11 years to get out a very modest rule,” he said. Fighting that rule would send a very strong signal about industry’s intentions, he said.

—With assistance from Dean Scott in Washington.

To contact the reporters on this story: Pat Rizzuto in Washington, D.C., at prizzuto@bna.com; Dean Scott in Washington, D.C., at DScott@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The REINS Act is available at http://src.bna.com/lCv.The American Chemistry Council's statement supporting the REINS and other regulatory oversight bills is available at http://src.bna.com/lCt.

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