‘Constellation’of Factors to Shape Success of Chemicals Law

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By Pat Rizzuto

Nov. 2 — A Donald Trump (R) presidency could place obstacles before the Environmental Protection Agency’s efforts to implement the amended industrial chemicals law, according to Bloomberg BNA interviews with former agency officials who worked with the EPA in the late 1970s and early 1980s.

Trump's election alone, however, is highly unlikely prevent the EPA from carrying out its legal obligations, said these individuals who participated in the implementation of the original 1976 Toxic Substances Control Act.

Given her background in children’s health advocacy, a Hillary Clinton (D) administration would likely be more supportive of a rigorous implementation of TSCA as amended June 22 by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. No. 114-182), the individuals said.

Her administration, however, could not guarantee the EPA will be able to achieve the law’s goals of protecting public health by collecting more information about new chemical products or increasing its ability to regulate harmful chemicals already in commerce, they said.

“Presidents matter, court cases matter, individuals matter. The success or failure of a law depends on a constellation of influences,” Jim Aidala, who began his career at EPA as an intern in 1975 and became a program analyst for the assistant administrator of pesticides and toxic substances by 1979 before leading that office under the William Clinton administration. He now works for Bergeson & Campbell, P.C. in Washington

A central argument driving the congressional update of the 1976 chemicals law was the original TSCA was fundamentally flawed.

Why the original TSCA failed to manage chemicals as well as its crafters intended elicited a variety of responses and reasons.

One reason some former midlevel management EPA staff cited was Ronald Reagan’s (R) presidency, which they said sought to undermine all EPA regulations.

Looking Back, Then Forward

The original statute and the amended chemicals law have a shared quirk. Both statutes were written by Congress, with the assistance of federal staff from one administration. Within months of enactment, however, their implementation did—or will—occur under a different administration.

In the lead up to the original passage of TSCA in 1976, it was largely crafted with the input of the Richard Nixon (R) and Gerald Ford (R) administrations, but initially implemented under Jimmy Carter (D) and further under Reagan.

Likewise, in 2016, the amended law largely was crafted with the technical input of EPA officials during President Obama’s administration, but it will be implemented under a Clinton or Trump administration.

One of the six people Bloomberg BNA contacted, J. Clarence “Terry” Davies, helped write the original law while he worked at the Council on Environmental Quality from 1970–1973. The others worked either for EPA during in the 1970s or 1980 or interacted with it on behalf of industry or environmental organizations.

Information also came from 10 oral histories in which senior management EPA officials shared their experiences with TSCA’s implementation. This histories were compiled by the Chemical Heritage Foundation, a nonprofit museum and archives located in Philadelphia.

Orphan Law

Based on those interviews and histories, many factors including the original statute’s language; turf wars within the agency and between federal agencies; early agency decisions; anti-regulatory positions held by Carter then Reagan; and court rulings, were among the factors that undercut TSCA’s effectiveness.

But one reason was cited more than any other: the original TSCA was abandoned.

“TSCA was a political orphan from the very beginning,” Davies told Bloomberg BNA.

The AFL-CIO was the only organization that strongly supported passage of TSCA, said the union’s Peg Seminario, a view confirmed by other people Bloomberg BNA interviewed.

“It was never anybody else’s high priority,” Davies said. “That’s a significant difference between then and now.”

Transitions

Like the original TSCA, the amended law will pass from one administration to another while the regulatory requirements and policies the statute mandates still are in development.

Neither the Clinton nor the Trump campaigns responded to Bloomberg BNA’s queries about their positions on the amended chemicals law or chemicals policy generally.

Public statements they have made, however, show that Clinton has long been concerned about the effect chemicals could have on children, particularly those living in low-income communities and in communities of color.

With the exception of asbestos, Trump has voiced few opinions on chemical policy.

The presidential transition that occurred months after original TSCA was enacted shook up agency efforts to implement the law, according to EPA managers serving then.

Glenn Schweitzer, director of EPA’s Office of Toxic Substances from 1973 to1977, said agency staff held a meeting and discussed ideas for implementing various sections of TSCA, Schweitzer recalled.

The EPA received many kudos for its preparation, according to Schweitzer. “Then when the new [Carter] administration came in, they said: `We’re starting over again,’” he said.

“The Democrats said the Republicans couldn’t do anything right, so therefore we’re going to do it from scratch. We’re just going to do it our own way,” was the perspective, he said.

Robert Sussman, an attorney and principal at Sussman & Associates based in Washington, said the EPA could lose momentum in implementing the new law as the administration changes.

“That won’t be good,” said Sussman, who represented chemical manufacturers during TSCA’s early years in lawsuits challenging the EPA’s regulations that would have required companies to provide toxicity data to the agency. Among other clients, he now advises Safer Chemicals, Healthy Families—a coalition of consumer, environmental, health and labor organizations.

Building Infrastructure

After Carter’s administration came in, it took years to set up the infrastructure to implement TSCA, according to the EPA staff employed there at the time.

The reasons include internal battles among agency staff; the new law regulating products developed by an industry the EPA did not understand well; and the science of toxicology was new enough so that it was not clear what types of toxicity tests would be appropriate for risk reviews, they said.

“In the earliest days, everything was new, everything was a precedent, and there were a lot of questions about`what should we do?’” Aidala told Bloomberg BNA.

That context stands in contrast with the decades of benchmarked toxicity tests and regulatory testing protocols that exist today. As yet another contrast, Bloomberg BNA was told the EPA had few toxicologists when original TSCA became law. Now the EPA’s chemical scientists are respected leaders developing high throughput toxicity and exposure tests.

Yet this area remains somewhat in flux as the Lautenberg Act requires the EPA to develop a strategy to move away from animal tests toward “scientifically valid test methods” that would replace them yet generate “equivalent or better scientific” data.

Another milestone was reached in May 1979 when the agency published its initial TSCA inventory listing 55,103 chemicals in commerce including 686 substances with generic names because their manufacturers claimed the chemicals’ identities should remain confidential.

The incoming administration will have regulations and policies it will—or won’t—develop, but it will not have to build an entire testing and review infrastructure, Aidala said.

If Carter had been re-elected, the EPA might have picked up the pace on TSCA implementation, he added.

Reagan’s Gorsuch Burford

While it is impossible to know whether TSCA’s implementation would have picked up steam under a second Carter administration, what is clear is that the Reagan administration brought about EPA’s nadir.

Reagan’s first EPA Administrator was Anne Gorsuch Burford, who served from 1981 to 1983.

“She was not interested in using EPA’s authority nor doing much regulation, and so the entire agency was in disarray for a couple of years,” Sussman said.

Her management of Superfund resources was the subject of a congressional investigation carried out by the chairman of the House Energy and Commerce Committee, John Dingell (D-Mich.), and she eventually resigned.

In her oral history, Marilyn Bracken, who worked in EPA’s Office of Pesticides and Toxic Substances from 1978 to 1983 under Carter and Reagan’s initial years, recalled the Gorsuch administration.

Reagan’s appointees were concerned that “under the Democratic administration, there was too much mandatory … too much regulation. And under this new administration, there was going to be more voluntary” compliance efforts, she said. “There was no incentive to try and get the regs out, and do things that we were responsible for doing,” she said. “I just found it hard to do my job.”

Reagan’s second EPA administrator, William Ruckelshaus, was praised by several individuals for bringing back some movement on chemical risk reviews through a team that included Jack Moore as one of the senior toxics officials.

Robert Scala, a toxicologist at ExxonMobil Biomedical Sciences from 1965 to 1991, described Moore as a “straight arrow” and “fellow scientist” who took a reasonable approach to regulations.

Davies said the stereotypes of Carter and Reagan—that Carter was “gung ho” about the environment and Reagan was against regulations—do not explain why the original TSCA failed achieve its goals.

Fears of Lawsuits, 1976 TSCA

The perception that court challenges would undermine EPA efforts led the agency’s general counsel to narrowly interpret what the agency could do under the original law, Davies and Aidala told Bloomberg BNA.

“We had huge arguments with the Office of General Counsel,” Aidala recalled. The first regulation that would have required chemical manufacturers to test chemicals in commerce went through 35 drafts, he recalled.

“EPA did trip over themselves,” Aidala said.

Jacqueline Manney Warren, an attorney who represented the Natural Resources Defense Council during original TSCA’s early implementation, said the environmental group’s lawsuits had mixed results.

Even when NRDC won and the agency was required to regulate polychlorinated biphenyls (PCBs) as the original law mandated, the agency’s implementing regulations did not have the effects the group hoped for and PCBs—which have a range of cancer and developmental health effects—continued to be pervasive in the environment, she said.

The chemical industry also brought multiple lawsuits challenging the EPA on the regulations it put out requiring them to test chemicals, Warren told television news commentator Bill Moyers in 2001.

Ultimately, during the early years, the agency was so “cowed by the prospect of industry litigation that many of the chemicals that [it] studied never got out of the front door, the regulations never came out,” Warren told Moyers.

Big Chill

Then one critical EPA regulation got out the door. The 1989 rule sought to ban most uses of asbestos, which can cause lung cancer and other diseases. The U.S. Court of Appeals for the Fifth Circuit overturned that rule in 1991 saying the agency had not met TSCA’s requirement to prove it had selected the least burdensome regulatory option ( Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 33 ERC 1961 (5th Cir. 1991)).

The Lautenberg Act no longer requires the agency to select the least burdensome option.

“The office was completely demoralized,” said EPA toxics attorney Mark Greenwood in his oral history. The chilling effect of the Fifth Circuit’s Corrosion Proof Fittings ruling had on agency morale and initiative is echoed in nearly every oral history.

Staff worked for almost 10 years to manage the risks of something they knew was harming people, “on something they felt desperately was important,” Greenwood said. “Suddenly, it was taken away.”

“Does the president have an impact? Yes,” Aidala said. “Is the president the driver? No.”

Clinton, Trump

Asked how a Clinton or Trump administration could influence the EPA’s implementation of amended TSCA, Davies said, “We have to assume he will be negative and do as little as possible.”

“We haven’t ever had someone who didn’t believe in democracy,” said Davies, who served under both Nixon and George H.W. Bush (R).

While Clinton may not emphasize chemicals as much as some of her supporters might want, she is likely to focus on the new law because of her concern for children’s health, Davies said.

Sussman said “I have to believe a Clinton EPA is going to be committed to strong implementation of the new law.”

“I won’t even comment on a Trump EPA. I can’t imagine that would be a good experience for anybody,” he said.

Ivanka Trump’s Influence?

Andy Igrejas, who leads the Safer Chemicals, Healthy Families coalition, Clinton’s potential impact is straightforward.

“She’s always been supportive of these issues and the EPA,” he told Bloomberg BNA.

Trump’s impact is harder to predict, Igrejas said.

Trump voices general hostility toward the EPA and regulations, but doesn’t provide a lot of specifics, he said.

Yet, if Trump listens to his daughter, Ivanka Trump—an entrepreneur who targets young shoppers—he may recognize the market advantage that the amended TSCA could give companies that use safer chemicals, Igrejas said.

Safer Chemicals, Healthy Families will be able to adjust its three-pronge strategy—to work at the federal, state and marketplace level—based on who is elected and where its members think they can be most effective, Igrejas said.

Courts in the Spotlight

In light of the Corrosion Proof Fittings case, Warren said the courts will have a closely watched role in implementing the Lautenberg Act.

Unlike the original law, the Lautenberg Act has many statutory deadlines, she said. “If an administration came in that didn’t want to support the law, with deadlines you can still take the agency to court,” Warren said.

“Any side can take the agency to court. I don’t think even a Trump administration could sit on it and not let EPA do anything at all.”

Aidala said: “The ways EPA uses its authorities could be challenged by the right or the left.”

A Trump administration could decide to do less than Clinton might, yet chemical manufacturers could sue to force more federal rulemakings to pre-empt state laws, Aidala said.

A central reason chemical manufacturers supported TSCA reform is that they wanted EPA rulemakings to put the brakes on the growing number of state chemical laws and regulations.

Environmental groups also could challenge EPA if it issues too few or only weak chemical controls, he said.

And a Clinton administration could aggressively use the amended law’s authorities only to have its statutory interpretations challenged because of the power of the courts, Aidala said.

During a Nov. 1 webinar, Charles Franklin—an attorney with Akin Gump Strauss Hauer & Feld LLP—said the Lautenberg Act: “Opens up 40 years of case law to new interpretation, basically wipes the slate clean.”

Lacy Lawrence, also with Akin Gump, said the Lautenberg Act may not wipe all TSCA case law away, but it could call previous rulings into question. That is because in the future the agency’s final decisions will be subject to different standards for evidence for rulemakings, she said.

Also, the amended statute provides EPA different legal authorities, she said.

For example, under the Lautenberg Act the EPA is authorized to order chemical manufacturers to provide toxicity and other data. Previously, the agency had to obtain such information through rules.

Updated Law, Same Legal Standard

Aidala said the amended law requires the EPA to justify why it uses order authority rather than rules to obtain data, and that could be challenged in court.

Judges, however, will review the new law using the same judicial standard they used under the original TSCA, he said.

The judicial standard for review used in most environmental statutes is the Administrative Procedure Act standard of “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

TSCA, however, uses a standard that requires the agency to achieve a more stringent judicial standard by requiring EPA to have “substantial evidence” supporting its chemical regulations.

The court cases and decisions are yet to come, but most individuals Bloomberg BNA interviewed said the new statute was crafted to address problems the old one created.

“The Lautenberg Act is a much better law than original TSCA, and I say that as the guy who wrote the original TSCA,” Davies said. “And, you’ve got more political support now.”

At some point no law could weather everything, but the amended TSCA will weather a Trump administration as well as the Clean Air Act and Clean Water Act would, Davies said.

To contact the reporter on this story: Pat Rizzuto in Washington, D.C. at prizzuto@bna.com

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

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