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By Pat Rizzuto
March 27 — Sorting out fees that chemical manufacturers could be required to pay the Environmental Protection Agency to implement a modern Toxic Substances Control Act likely will be more challenging than TSCA reform supporters anticipate, former EPA officials have told Bloomberg BNA in recent interviews.
In addition, staffing in the Office of Pollution Prevention and Toxics, where most of the work of administering a new chemicals law would take place, is now at about half the level it was in 1992 and would need to grow to meet its new responsibilities. Some of the money for staff and resources to meet new responsibilities would come from fees and congressionally appropriated funds.
To secure money from the fees, the EPA's chemicals office will have to figure out the costs of the services it would provide to comply with requirements in TSCA reform bills that have been introduced. It also will have to figure out which companies manufacture chemicals that would be subject to service fees and how to define small businesses that would qualify for reduced fees, Jim Aidala told Blomberg BNA. Aidala is a senior government consultant with Bergeson & Campbell P.C. who oversaw both chemical and pesticide policies while working at the EPA during the 1980s through 2001.
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Securing income from fees is critical if the agency is going to have the manpower and other resources it needs to implement an updated TSCA, Jim Jones, EPA's assistant administrator for chemical safety and pollution prevention, said during a March 18 hearing on TSCA reform legislation.
“I believe—with the fee provisions—the agency would have the resources to implement the law. In absence of these, we would not,” Jones told the Senate Committee on Environment and Public Works March 18.
The committee held a hearing on the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697).
That bill, which Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) introduced March 10, is one of two introduced this Congress to modernize TSCA. The statute has not had its core provisions altered since 1976, the same year the no-longer-operating Concorde, a supersonic passenger jet, took flight.
The second bill is the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act (S. 725), which Sens. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.) introduced March 12.
TSCA reform bills have been introduced in several recent sessions of Congress, raising hopes that issues are ripe enough and there are sufficient legislators familiar with the statute to secure passage of a reform bill in this session.
Both bills would authorize the EPA to issue rules that would require chemical manufacturers to pay fees for various services the agency would provide under either potential law.
Neither bill would establish specific fee amounts. That means OPPT, which regulates chemicals, must come up with estimates of its expenses in carrying out certain tasks such as assessing chemicals for various purposes including screening them for potential risk versus evaluating them to determine whether or not a chemical poses a safety risk warranting controls of some kind.
The Boxer-Markey bill would not set a limit on the total amount of the OPPT's budget that could come from fees, but says they should be sufficient to ensure the agency can carry out its duties under the bill and to increase the number of chemicals it assesses for safety.
Under the Udall-Vitter bill, the total amount of fees that the OPPT would secure from industry would be capped at 25 percent, or $18 million, of the cost of the services for which the legislation would authorize the EPA to levy fees.
In both cases, the fees would contribute to a larger congressionally appropriated budget funding the office's work.
The fees and appropriated funds would pay for new responsibilities, including updating the U.S. inventory of chemicals in commerce, determining which of the chemicals would be the first to undergo a safety assessment under a new standard to be established by the bill and assessing the chemicals to determine whether or not they meet that safety standard.
Aidala told Bloomberg BNA March 24 that he agrees with Jones that the agency can implement the new requirements of either TSCA reform bill provided it has additional resources.
“It's doable, very doable,” Aidala said.
But no one should underestimate how hard it will be for the OPPT to figure out critical fee-related questions, Aidala said. These questions, he said, include:
• What are the appropriate fees for services?
• To which company or companies should fee “bills” be sent?
• What companies will be excluded due to small business or other reasons?
• How long will it take to ramp up hiring and get contracts in place—will it affect any deadlines?
Both the Udall-Vitter and Boxer-Markey bills would establish tight deadlines for the agency to develop policies and procedures to implement their requirements, and the chemical assessments and other requirements of both bills would have to be carried out within a specified number of years.
The bills vary on questions such as the number of chemicals the agency would have to assess and whether the policies and procedures the agency would set would be established by rules or through guidance documents.
Carrying out the increased responsibilities of either bill would be made more challenging by a recent trend in which the number of employees leaving OPPT exceeds the number of staff being hired, said Charles Auer, a consultant with Charles Auer & Associates LLC who directed OPPT for much of his 32-year career at the agency.
He referred to a trend illustrated by retirement, hiring and other staff figures the agency provided BNA (see chart).
As of the end of calendar year 2014, OPPT's workforce was 279; by Jan. 25 it had dropped to 265, the EPA's information said.
The 265-staffing figure compares with a full-time staff of about 500 in 1992, Mark Greenwood, an attorney with Greenwood Environmental Counsel PLLC, told BNA. Greenwood formerly worked for the EPA for 16 years, including directing OPPT from 1990 to 1994.
Auer said OPPT's recent retirements and staff who have left the agency for other reasons has eliminated many experienced risk assessors and other scientists in recent years.
“It seems that OPPT would need additional staff—particularly technical experts—and these can be slow to identify and hire,” Auer said.
In the past, when the EPA received new statutory responsibilities, it was typical for the agency to transfer some staff and resources within the agency to support the new statute, Greenwood told Bloomberg BNA by e-mail.
“That would probably happen to some degree with a new TSCA. But the fact that EPA as a whole is seeing a declining staff replacement rate would suggest that such shifts in resources would be limited,” he said.
Aidala said the EPA's administrator would likely make implementation of a new TSCA a priority and find staff and resources to supplement the chemical office's budget for the short term.
OPPT would essentially “beg, borrow and steal resources” from any part of the agency where such was possible, he said.
The additional staff and funding the administrator likely would help OPPT find would help the agency until Congress authorized funds and additional full-time employees through an appropriations bill, Aidala said.
Depending on when a bill would be signed—if any legislation gets that far—it could be almost a year before new appropriations and increased staff levels would be approved, Aidala said.
Income from fees will also take time to arrive, he and other former officials said.
“If the bills retain a fee system to bring more resources to EPA for TSCA, there would be a lag time before those resources (which must be collected and then allocated to EPA through the appropriations process) will arrive at EPA,” Greenwood said.
Aidala and Steven Bradbury, a consultant with Steven P. Bradbury & Associates and formerly a director of the EPA's Office of Pesticide Programs (OPP), urged the agency to plan ahead.
OPP's implementation of the Federal Insecticide Fungicide and Rodenticide Act will provide information that the agency's chemicals office could use to help it prepare to implement a new law, they said.
For example, there should be some lessons learned from OPP to help the chemicals office understand how much staff and time it would take to review different types of toxicity, exposure and other studies, Bradbury said.
But a key difference, according to Aidala, is that the smaller universe of products—pesticides—over which OPP has jurisdiction and the decades that it has had divergent types of fees means it has good information about which companies would be subject to different fees.
EPA's chemicals office does not have comparable lists of the manufacturers of each chemical it may evaluate, Aidala said.
“Who do you send the bill to?” he asked.
The number of big companies that will argue the particular division that makes a chemical should qualify for a “small business” fee and the number that will argue they should be exempted from a fee altogether should not be underestimated, Aidala added.
During the March 18 hearing, Democrats raised other concerns they have about EPA's resources to implement TSCA reform—in particular the Udall-Vitter bill, which would preempt some state chemical regulations.
“I sit on EPW; I also sit on the Budget Committee,” said Sen. Sheldon Whitehouse (D-R.I.).
“The other aisle is constantly and relentlessly attacking the EPA budget,” he said.
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