EPA’s Toxic Substances Rules Face First Legal Tests

By Pat Rizzuto

Two of the EPA’s core regulations for implementing the nation’s amended chemicals law face early legal challenges from more than a dozen environmental, labor, and health organizations.

The lawsuits mark early tests of two “framework” regulations implementing the Toxic Substances Control Act amendments of 2016 and could touch on the chemical industry’s influence on the Environmental Protection Agency’s rules, an attorney for the environmental groups challenges the regulations said.

A coalition of environmental, labor, and health advocacy groups, led by Safer Chemicals Healthy Families, asked a federal appeals court in California Aug. 10 to review EPA regulations that describe the procedures it would use to prioritize chemicals for risk evaluation (RIN:2070-AK23) and the procedures it would use to evaluate (RIN:2070-AK20) chemical risks ( Safer Chems. Healthy Families v. EPA , 9th Cir., No. 17-72259, 8/10/17 ; Safer Chems. Healthy Families v. EPA , 9th Cir., No. 17-72260, 8/10/17 ).

Separately, the Environmental Defense Fund challenged both rules in a federal appeals court in New York City Aug. 11 ( Envtl. Def. Fund v. EPA , 2d Cir., No. 17-2464, 8/11/17 ).

Conditions of Use

A core issue the Safer Chemicals Healthy Families coalition plans to challenge is the final rule’s interpretation of the “conditions of use” that the agency will consider as it decides whether to assess the risks of a chemical or carries out that risk evaluation, Eve Gartner, an Earthjustice attorney representing the coalition told Bloomberg BNA.

The environmental group accused the EPA of violating the law’s intent by trying to pick and choose” which uses it would examine when it is required under the statute to evaluate “the conditions of use” not some conditions of use, Gartner said. The law defines the conditions of use as “the circumstances, as determined by the administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.” The rules as originally proposed in January would have evaluated the full circumstances of a chemical’s use, Gartner said.

The EPA won’t get the full science-based perspective if it looks at only some exposures, and it may underestimate risks, Gartner said.

‘Not the Real World’

The “risk scoping” documents the EPA released June 22 describing its initial strategy to evaluate the risks of asbestos and its approach for evaluating a group of flame retardants called the cyclic aliphatic bromide cluster or hexabromocyclododecane (HBCD) illustrate the problems that arise when the agency picks and chooses what uses it will examine, Gartner said.

For example, the agency said it would evaluate ongoing, but not legacy, uses of asbestos. That means the agency might consider the chlor-alkali industry’s use of asbestos to make chlorine, sodium hydroxide, and hydrogen, but not ongoing exposures that continue from asbestos that remains in buildings, Gartner said. Nor was the scoping document clear on whether the agency would consider all the exposures that occur as asbestos is imported, transported, or transformed into the diaphragms chlor-alkali manufacturers use, and the disposal of those diaphragms, Gartner said.

Ongoing uses might pose a modest increase in risk, but they contribute to a population’s background exposures, Gartner said. If the EPA doesn’t take the full range of ongoing exposures into account it could underestimate the risks a chemical poses.

If EPA looks only at a snapshot in time, such as ongoing uses, those risks might not be that significant, Gartner said. “But that’s not the real world.”

HBCD’s ongoing uses are declining because of health concerns it raises, yet legacy uses contribute to ongoing exposures, Gartner said. Household dust measurements of HBCD show that people are being exposed to ongoing and legacy uses of the flame retardants, she said.

EDF’s attorney could not be reached immediately Aug. 11.

Chemical Industry Influence May Arise

Gartner said she expects the chemical industry’s influence on the two final rules to come up in some way during the litigation.

Nancy Beck, a former American Chemistry Council toxicologist, is now deputy assistant administrator in the EPA office that crafted the final rules, Gartner said. The American Chemistry Council, represents U.S. chemical manufacturers including the Dow Chemical Co. and Chevron Phillips Chemical Co. LP. Beck’s position did not require Senate confirmation.

“She gets installed. The rules get changes, and now they reflect precisely what the chemical industry wanted. That’s deeply concerning,” Gartner said.

An EPA spokeswoman told Bloomberg BNA, “We welcome working with all stakeholders in a constructive way, including specific suggestions for approaches we can take and the tools we can use that are consistent with the statute, to properly implement TSCA, and ensure that chemicals in commerce are reviewed for safety. Dr. Beck, as we all know, has industry experience—she has decades of unbiased scientific and toxicology work under her belt and has served this country in three Administrations, for both Republican and Democratic presidents.

“We take our ethics responsibilities seriously; all political staff have had an ethics briefing and know their obligations. Each of us has committed to serve in a fair and professional way.”

The U.S. Court of Appeals for the Ninth Circuit, in an Aug. 10 order, set an Oct. 30 deadline for the advocacy coalition to file its opening briefs.

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

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

For More Information

Safer Chemicals Healthy Family's petition challenging the prioritization rule is available at http://src.bna.com/rCH.

Safer Chemicals Healthy Family's petition challenging the evaluation rule is available at http://src.bna.com/rCJ.

The Environmental Defense Fund's petition is available at http://src.bna.com/rCL.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.