[pullquote]Last year was full of surprises, two of which will drive much of the agenda in 2017 for the Office of Chemical Safety and Pollution Prevention (OCSPP) of the U.S. Environmental Protection Agency (EPA). First, Congress significantly amended the Toxic Substances Control Act (TSCA). Although many thought the chances of successful TSCA legislation were slim, the second surprise event was even more unexpected — the election of Donald Trump as President.
Along with a Republican President, both the House and Senate remain Republican majorities. So, the EPA , along with other regulators, will be pressured to align with the party platform, and be more flexible and business-oriented. Current and past policies will be scrutinized, while Democrats in Congress and environmental advocates who supported Obama administration policies will resist significant changes. Expect the EPA to operate in a volatile and often hostile environment.
What’s more predictable is that environmental advocates will need to change their approach in moving their agenda. In past similar situations, such non-government organizations have emphasized litigation and petition challenges to avoid the executive and legislative branches. Advocacy through the judicial branch of government may be slow but may be a more successful forum.
Mr. Trump nominated E. Scott Pruitt, currently the Attorney General of Oklahoma, as the EPA’s next administrator. Pruitt opposes Obama administration initiatives on climate change and water pollution. For OCSPP, it’s not clear what direction he might take for regulating pesticides and chemicals. Regulated industries will continue to need a credible and competent EPA staff to review and approve applications for both pesticides and new chemicals. It’s also unclear what type of background the Trump administration will seek in a new OCSPP Assistant Administrator. Even with emphasis on being more business friendly, programs still will have to process applications and notifications and complete risk assessments.
Similarly, a new Republican President will complement the Republican Congress, which has opposed many EPA initiatives developed under the Obama administration. In recent years, industry has raised concerns about the “science integrity” of EPA decisions and has lodged complaints about policies that industry believes have been issued or developed without sufficient transparency or requisite notice and comment rulemaking authority. These are certain to be the focus of Congressional oversight and policy lobbying of any new EPA leadership team.
Given our expectation that the Trump administration will work to implement the new TSCA, 2017 promises to be busy. We expect an inventory of mercury supply, use and trade in the United States will be published by April 2017. By June, we should expect to see procedural rules establishing prioritization and risk-evaluation processes and criteria; an Inventory reset reporting rule; establishment of the Science Advisory Committee on Chemicals; issuance of a guidance document for interested persons to use in preparing draft risk evaluations; issuance of scope documents for the ten risk evaluation chemicals the EPA announced in November; and completion of the EPA’s consultation with the Small Business Administration on the adequacy of the definition of a small manufacturer and whether revision is necessary.
In addition, the EPA may promulgate a Significant New Use Rule (SNUR) on long-chain perfluoroalkyl carboxylate and sulfonate chemical substances. The rule could be promulgated in part in 2017, although it appears that, under the new TSCA, the EPA would need to re-propose the rule if it wishes to make imported articles containing such chemicals subject to the SNUR. The EPA may issue a proposed Section 6(a) rule on methylene chloride and N-methylpyrrolidone (NMP) use in paint strippers. The new administration will likely affect this rule, if issued in final as written. We believe the EPA’s decision to undertake new risk evaluations for these chemicals increases the likelihood the rule will be withdrawn or at least re-proposed once the new risk evaluation has been issued in final (2019 timeframe).
Making predictions is always dicey, especially with an administration headed by Mr. Trump. Climate change and water initiatives may well get all the love in the first days of the new administration, but there’s a lot going on in toxics, and the manufacturing sector will be very busy ensuring the rulemaking products expected to be issued this year are thoughtful and scientifically grounded.
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006).