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By Pat Rizzuto
Nov. 30 — The incoming administration of President-elect Donald Trump has yet to weigh in on how it will implement the amended Toxic Substances Control Act, attorneys and other chemical policy watchers told Bloomberg BNA.
A bipartisan group of nine senators urged the Trump transition team Nov. 30 for “continuity and continued momentum” in implementing the amended law. The letter is signed by Senate Environment and Public Works Chairman James Inhofe (R-Okla.), Sen. Tom Udall (D-N.M.) and others involved in crafting what it calls “badly needed reforms” to the 1976 Toxic Substances Control Act.
Revisions to the nation’s chemical law enacted by a bipartisan group of lawmakers earlier this year were big news in the environmental policy arena but have not been addressed during this presidential transition period.
“It’s very hard to know what the thinking is other than on big issues,” such as energy and water, Jim Aidala, a senior government affairs consultant with the Washington, D.C., office of Bergeson & Campbell, P.C. said.
“I think the new administration would want to shape [the chemicals] policy rather than kill it before it goes forward,” Dimitri Karakitsos, who, as counsel to the Republican-majority Senate Committee on Environment and Public Works, played a central role in negotiating the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. No. 114-182). It amended the core provisions of TSCA for the first time in 40 years.
The Environmental Protection Agency’s decisions on new chemicals may signal how the incoming Trump administration will interpret the Lautenberg Act, said Ben Dunham, a senior policy adviser with Holland & Knight.
Dunham said he hopes Trump’s team will bring in someone very familiar with the new law as soon as possible.
“The last thing in the world anyone wants is to end up where we were with the old TSCA where the federal system falls apart,” he said.
Depending on whether and how they are implemented, government-wide policies Trump has announced so far could harm the nascent law, said Aidala, who spent decades at the EPA dealing with chemicals and pesticides.
Specifically, he referred to the federal hiring freeze and plan to eliminate two regulations for every new one issued, which Trump announced in October. That could impede efforts to boost the EPA’s oversight of chemicals, Aidala said.
Bryan McGannon, policy director for the American Sustainable Business Council, said such executive office policies, combined with House Speaker Paul Ryan’s desire to couple tax cuts with deep spending cuts, could result in an underfunded, understaffed EPA.
The result could be the agency’s chemical risk evaluations being driven by industry-generated analyses, McGannon said.
He referred, among other scenarios, to a provision of the Lautenberg Act that allows industry coalitions and other third parties to submit risk evaluations to the agency.
Aidala, Dunham, Karakitsos and McGannon were among the attorneys and other policy professionals Bloomberg BNA has interviewed since Nov. 8 to discuss how a Trump administration could implement the chemicals law.
Congress will be watching and wanting the EPA to carry out the law’s requirements, said a number of chemical policy professionals Bloomberg BNA contacted.
“I expect the incoming administration to implement and enforce the law fully, and will be watching closely to ensure that it does,” Sen. Sheldon Whitehouse (D-RI) said by e-mail.
“This was an important piece of legislation to a lot of members of Congress,” said Karakitsos, who now works with the Washington, D.C., offices of Holland & Knight LLP.
Congress signaled its support by providing the agency $3 million for the statute’s implementation in the continuing resolution for funding the government that President Barack Obama signed into law Sept. 29 (Pub. L. No. 114-223), he said.
Industry officials and some nongovernmental organizations also backed the law, Whitehouse and Karakitsos said.
Finally, EPA staff helped in developing the statute and thus have a good understanding of its requirements, Karakitsos said.
The EPA doesn’t have to wait until its next administrator and assistant administrator for chemical safety and pollution prevention to be confirmed in order to continue implementing the law, he said.
Decisions the EPA will make on new chemicals may provide an early signal as to how the Trump administration will implement the Lautenberg Act, several individuals said.
While waiting for signals from the incoming administration, Aidala predicted there will be some business as usual (see related story).
New administrations generally want actions to “cease and desist” for at least six months, he said.
That could delay some of the statutorily mandated rules, Lynn Bergeson, managing partner at Bergeson & Campbell, P.C. said.
Following the initial suspension of action, Aidala said, a new administration typically announces it will pursue its policies in a way that’s “cheaper, cleaner and smarter” than the previous administration did.
The incoming Trump administration may find it easier to move chemical policies forward quickly if the proposed rules the agency already has submitted to the White House Office of Management and Budget for review—and the additional ones it plans to submit—provide multiple regulatory options, Aidala and Auer said.
The EPA has said it will propose four rules under the new law by the end of this year. Two are already at OMB: one laying out procedures the EPA could use to decide which chemicals in commerce are a priority for risk evaluation and another describing the agency’s risk evaluation procedures.
A proposal to determine which chemicals have been in commerce during the last 10 years and another laying out fees industry would pay for the EPA’s chemicals oversight have yet to be submitted for review.
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