Source:  Aaron Lovell, Inside EPA, 1/18/11


The chemical industry is considering whether to ask GOP lawmakers to scrutinize a number of EPA programs affecting the sector, such as new reporting requirements, but may also urge Congress not to cut the agency's budget, fearing that decreased funding would further delay needed chemical reviews, industry sources say.

Observers are doubtful that Congress will take up broad reforms to the Toxic Substances Control Act (TSCA) any time soon, spurring industry to consider taking a narrower set of issues to Capitol Hill, where they have more allies now that Republicans have taken control of the House and increased the size of their caucus in the Senate.

While industry sources say they will continue to engage Congress on TSCA reform, one industry source says industry's moves on the Hill will be "very reactive" to a number of key actions and rulemakings currently being developed by EPA, including the Inventory Update Reporting (IUR) rule and a general Significant New Use Rule (SNUR) for nanomaterials.

"People are going to let EPA take the first shot," the source says, adding that the White House regulatory review office is also looking at rules.

Industry already has been raising concerns about the timeline for the IUR rule, which EPA and activist groups say is needed to better understand what chemicals are currently in commerce. The reporting window is currently set for later this year.

The American Chemistry Council (ACC) has filed comments with EPA on the IUR, but could also reach out to lawmakers if the agency does not address their concerns. "We always attempt to try to work with the agency first. . . . Congress is always another path," says an ACC spokesman.

Another industry source says the timelines in the IUR are a "huge concern" for chemical companies and could see Hill action in the current session because "EPA has not been particularly receptive" to industry suggestions. The source continues, "It's very late. This issue needs clarity sooner rather than later."
Sources also say industry could further raise concerns with congressional appropriators about budget cuts that affect the new chemicals and pesticide registration programs at the agency. Some companies are currently frustrated with the processing time for new chemical reviews, which would make budgets cuts a "bad idea," says a source with the Society of Chemical Manufacturers & Affiliates (SOCMA), which works with makers of specialty chemicals.

A second industry source says even small budget cuts do not account for inflation and that administration priorities could exacerbate the impact of the budget cuts on certain programs over others. Hiring freezes can also make it difficult to replace employees with "critical skills," can lead to less staff working to develop rules and can impact the agency's consideration of stakeholder comments, the source says.
Sources says industry could also raise questions about other actions EPA is taking under TSCA, as Administrator Lisa Jackson seeks to exercise the agency's existing authority in lieu of congressional reform. These include a first-time chemicals "concern list" being developed by the agency, new policies surrounding confidential business information under TSCA, and chemical action plans for specific chemicals.

Beyond TSCA issues, the first industry source also says stakeholders could weigh in on EPA's Integrated Risk Information System (IRIS) program, the reorganization of the agency's Office of Research & Development and the Risk Assessment Forum's development of a new approach to risk assessment. "How are all the pieces fitting together?" the source asks.

Letters To Issa
Industry has already raised some concerns in letters to Rep. Darrell Issa (R-CA), chairman of the House Oversight & Government Reform Committee, who asked for information on existing and proposed regulations that could negatively impact job growth.

In a Jan. 10 letter to Issa, SOCMA raises concerns with the chemical manufacturing area source rule, a rule finalized in October 2009 establishing emissions standards for smaller chemical makers. SOCMA and ACC sued EPA over the rule, raising concerns about provisions in the final rule not included in earlier proposed versions, leading to EPA planning proposed revisions to the rule, the SOCMA source says.

In a Jan. 7 letter to Issa, the NanoBusiness Alliance raised questions about future proposals EPA is pursuing under TSCA, including the SNUR for general nanoscale materials. "Part of our concern is that the cost for compliance is potentially very high and in some instances, given the lack of accepted analytical methods, test results may not yield accurate safety data," the letter says. "This could result in prohibitive compliance costs for uncertain improvements in environmental outcomes, and reinforce unfounded characterizations that all nanoscale materials are likely to be environmental or health threats."

The group also raises questions about a policy EPA is developing that would consider pesticides containing nanoscale ingredients to file "adverse effects reports" under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The policy is currently under review at the Office of Management & Budget. "Such a regulatory determination will negatively impact the innovation of nanoscale materials in the pest control industry," the letter says.

The second industry source says there could be further increased concern about EPA removing products from the market without going through the FIFRA cancellation process, an issue currently being played out in federal court in two key cases.