What does EPA have in store?

Feb. 17, 2006
Don’t expect any major changes in U.S. Environmental Protection Agency (EPA) regulations during 2006. Here’s a summary of trends and developments anticipated this year.

The mid-term elections may cause a stir at the agency

Don’t expect any major changes in U.S. Environmental Protection Agency (EPA) regulations during 2006. Here’s a summary of trends and developments anticipated this year.

Since Administrator Steve Johnson arrived without a clear agenda for fundamental change, most EPA-regulated entities should continue to see little difference in the agency’s actions or underlying policies. Some priorities, including contamination incidents and science controversies, will continue to be set by unforeseeable events or media attention. EPA will be expected to do its job with minimal notoriety and ever-reduced resources. The dominant Washington issues for 2006 — off-year elections, the war in Iraq, homeland defense, the budget deficit, and Supreme Court nominees— will mostly leave EPA on the back burner.

Mid-term election impact and activist agendas

With mid-term elections, expect activists to try to raise the profile of environmental issues through litigation and publicity to induce change by swaying public opinion. Endangered Species Act litigation probably will continue unabated, as will the push for more stringent air regulations. EPA’s expected failure to review, as mandated, all existing pesticide tolerances by August is likely to spark litigation. Activists also may continue to press EPA’s toxics programs for enhanced testing regimens and focus on chemicals identified in continued biomonitoring programs.


The federal budget-deficit-control push will continue to bode badly for EPA. Fiscal year 2007 should see squeezed revenues that will diminish available funds, enhancing opportunities to work with EPA and other stakeholders to craft novel, more-focused solutions to emerging transformative technologies and EPA’s review of their risks and benefits.

Air/water/waste issues

EPA is expected to revise the definition of “solid waste” and to reinstate the Superfund Tax. On the air side, EPA recently proposed reducing National Ambient Air Quality Standards for particulate matter for 24-hour fine particles by almost 50% (from 65 µg/m3 to 35 µg/m3), with a final rule due by September. EPA also should develop water monitoring and surveillance systems for contaminants, and make drinking water safety a priority.

Capitol Hill

The Senate Environment and Public Works Committee is likely to confirm the President’s nominee for Assistant Administrator of the Office of Pollution Prevention and Toxic Substances ; and amend the Federal Insecticide, Fungicide, and Rodenticide Act and Toxic Substances Control Act (TSCA) to comply with Prior Informed Consent/Persistent Organic Pollutants international agreements. Homeland defense/chemical plant security legislation also could impose new requirements and/or restrictions on makers or sellers of chemicals or pesticides. Clear Skies legislation is still alive, but likely won’t move much if at all. Trade legislation, either as bilateral agreements with certain countries, or the “fast-track,” also would provide a forum for Bush Administration critics to advance environmental issues.

TSCA chemical testing

EPA has stepped up reviewing of engineered nonoscale materials consisting of chemical substances under the TSCA new chemicals program, which will include modified pre-manufacture notification review. The National Pollution Prevention and Toxics Advisory Committee (NPPTAC), in November 2005, provided the basis for a voluntary program, a complementary approach to new chemical nanoscale requirements under TSCA, and other relevant issues, which EPA is expected to launch this year.

The American Chemistry Council, the Soap and Detergent Association, and the Synthetic Organic Chemical Manufacturers Association recently Extended the High Production Volume (EHPV) Program, to publish health and environmental information on 574 additional chemicals and increase publicly available safety information for HPV substances. Work on the program will begin during a self-selected “start year” from 2006 to 2009, with completion and all information publicly available by 2010.

Considering an EHPV program will be compelling as the European Union (EU), at the end of 2005, approved Registration, Evaluation, and Authorization of Chemicals (REACH) legislation. The EU Council, perhaps by May, is expected to adopt a common position and put REACH in force by spring of 2007. This will directly impact U.S. chemical producers and exporters, and raise stakes in domestic debate over TSCA’s continued utility and effectiveness in managing chemical risks.

While no significant changes are expected, the elections may shake things up a bit.  Additionally, EPA’s typical roster of initiatives will make 2006 an interesting year.

By Lynn Bergeson, regulatory editor. She is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on chemical industry issues. Contact here at [email protected]. The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.

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