The Trump administration released the nation’s most important chemical-safety rules in decades Thursday — but only after making a series of business-friendly changes overseen by a former industry advocate who holds a top post at the EPA.
Career agency employees had raised objections to the changes steered by EPA Deputy Assistant Administrator Nancy Beck, who until April was the senior director of regulatory science policy at the American Chemistry Council, the chemical industry’s leading lobbying group. Those include limits on how broadly the agency would review thousands of potentially hazardous substances, EPA staffers wrote in an internal memo reviewed by POLITICO.
Such limits could cause the agency to fail to act on potential chemical uses "that present an unreasonable risk to health or the environment,” EPA’s top chemicals enforcement official argued in the May 23 memo.
The rules are meant to implement last year’s landmark rewrite of the 1976 Toxic Substances Control Act, a major bipartisan achievement in a deeply divided Congress. Both parties agreed that the law needed an update — the original version didn’t even allow EPA to ban asbestos, a known carcinogen, and some states had begun to step in and create their own patchwork of regulations for chemicals.
But the Trump administration’s steps to implement the law, and Beck’s role in particular, are drawing alarm from environmental groups and congressional Democrats.
Melanie Benesh of the Environmental Working Group called Beck the "scariest Trump appointee you’ve never heard of," and pointed to a 2009 Democratic congressional report that accused Beck of working to delay and undermine EPA’s chemical studies during her previous tenure at the OMB.
New Jersey Rep. Frank Pallone, the top Democrat on the House Energy and Commerce Committee, argued in a letter to EPA Administrator Scott Pruitt on Wednesday that Beck’s appointment "has the potential to undermine the scientific integrity of EPA’s TSCA implementation and the consumer confidence we sought to build with a reformed TSCA." Pallone is seeking information about Beck’s involvement with the chemicals rules and the issues she is ethically allowed to work on.
Beck told POLITICO that she has been "very involved" with the rulemaking for the past two months at EPA. She also defended the changes in the rules.
“The development of a rule when you go from proposal to final, or even as you develop a rule, it just evolves over time,” she said in an interview Wednesday, before the rules came out. “So I think that this has been a moving target, and will continue to be a moving target until it gets through the OMB review process.”
A statement from EPA’s senior ethics counsel said Beck did not need to recuse herself from working on the TSCA rules because they are "matters of general applicability." The counsel added that Beck was cleared to consider comments her former employer had submitted.
The American Chemistry Council spent more than $9 million on lobbying last year, and its employees and PAC donated $541,000 to federal candidates in the 2016 cycle, giving Republicans 2½ times as much as it gave Democrats, according to the Center for Responsive Politics.
EPA officials told POLITICO that the issues raised in the memo from the agency’s Office of Enforcement and Compliance Assurance were part of a typical intra-agency consultation process.
Jeff Morris, director of EPA’s Office of Pollution Prevention and Toxics — the division charged with writing the rules implementing TSCA — said chemical safety officials met with the enforcement office "and talked through their comments, and based on that discussion, we moved forward with the rule. At the end of the day, OECA concurred on our approach."
That doesn’t mean the final rules necessarily incorporated OECA’s suggestions, he added, but in the end it produced a rule "that we could all support."
Thursday marked the anniversary of the 2016 revamp of the 40-year-old TSCA, which regulates the tens of thousands of chemicals used in the United States. It took Congress two years to hash out the compromise, ultimately winning support from chemical makers and some environmental groups for legislation that beefed up EPA’s power to regulate harmful chemicals.
Rather than relying on EPA to prove that a substance was dangerous, the law shifted some of the burden to industry to show a chemical’s safety. But TSCA also gave EPA latitude to determine how to go about examining thousands of chemicals — effectively setting the scope of the review for substances ranging from corrosive chemicals used in refining to the paints and plastics in children’s toys.
EPA’s plans to implement TSCA came out Thursday in the form of three final regulations known as the "framework rules." One rule lays out how EPA will set priorities for its assessments of chemicals, dividing them into high- and low-risk categories. Another rule details methods for studying the health and environmental risks of each chemical. And the third culls from EPA’s list any substances not used commercially since 2006.
That last change will ultimately shrink the inventory from 85,000 chemicals to around 30,000, once companies weigh in on which chemicals they still use, according to a recent estimate from Jim Cooper, a senior petrochemical adviser at American Fuel and Petrochemical Manufacturers. Future use of those chemicals will be prohibited until the agency reviews them.
Pruitt has made TSCA a top priority under his "back to basics" strategy, which has been marked by the rollback of several Obama-era environmental regulations, especially major rules on climate change. Funding for TSCA implementation would be increased under the Trump administration’s 2018 budget proposal, while other chemical safety programs and nearly every other aspect of EPA would be cut sharply.
“The activities we are announcing today demonstrate this Administration’s commitment to providing regulatory certainty to American businesses, while protecting human health and the environment,” Pruitt said in a statement releasing the rules.
EPA’s political leaders have pressed the agency’s staff to meet the law’s aggressive deadlines for writing new rules and evaluating individual chemicals, but environmentalists say they are more concerned with the substance of the implementation rules. Congressional Democrats and green activists were already worried about the approach an anti-regulatory administration might take to toxic substances, especially given President Donald Trump’s past support for asbestos, which he once complained got a "bad rap."
Those fears rose with the arrival of Beck, who worked as an OMB analyst for a decade before joining the American Chemistry Council. She represented the council at a March Senate hearing where she criticized the Obama administration’s proposed TSCA implementation.
EPA career employees, in turn, have expressed concern about the changes the implementation rules have taken since Beck arrived.
The staff memo reviewed by POLITICO was sent by the head of EPA’s Waste and Chemical Enforcement Division to Wendy Cleland-Hamnett, the acting assistant administrator for EPA’s chemical office, on the same day part of the final rules package was sent to the White House for review. It laid out a number of concerns about changes the Trump administration made to a section of the Obama EPA’s January proposal governing which chemicals warrant the most thorough safety evaluation.
Among those concerns was that EPA would consider only a limited set of uses for a chemical when deciding whether it warrants further scrutiny and then determining the risks to human health, rather than examining all the ways people could be exposed to it. For instance, while most Americans think of asbestos as a building material, its largest use by far in the U.S. today is in equipment used to make chlorine gas. Chemicals manufacturers have argued that that use needn’t be considered, saying humans are highly unlikely to come in contact with the asbestos during that process, but environmentalists contend that EPA shouldn’t ignore it when deciding how risky the chemical is for human health.
In an interview, Cleland-Hamnett said EPA is aiming to set the highest priorities for the chemical uses that present the greatest risk, and that it wasn’t prohibiting a broader analysis.
"Not that those are the only uses we would evaluate, but we do want to make sure that we’re evaluating those uses," she said. "So I think we’ve addressed the concern that we might not evaluate the uses that could prevent unreasonable risk."
This issue has been a chief sticking point among environmentalists, public health advocates and the industry. Chemical manufacturers may produce a substance for a specific use, said Richard Denison, lead senior scientist at the Environmental Defense Fund, but once it’s put on the market, it can end up being used in a wide variety of ways.
"That chemical that the company may intend to use solely in industrial settings may very well be bought by another company that decides to put it in a consumer product that is sold at your local hardware store," he said.
But Mike Walls, vice president of regulatory and technical affairs at the American Chemistry Council, said the process should differentiate among various uses of each chemical to determine specific restrictions for each.
"Risks can be managed along a spectrum of measures, running from a ban at its most extreme, to things like labeling or warning requirements," he said. "So that risk-evaluation process is really critical."
EPA also released a decision on the scope of its first 10 chemical reviews, which include asbestos, several dry-cleaning chemicals and a purple dye thought to hurt fish and other aquatic life. Industry groups are closely watching whether EPA decides to review those chemicals for all possible exposures, or whether it will limit its review to narrow, specific uses. Further study of those chemicals will take years.
But even as greens have raised alarms about the efficacy of the new chemicals law under the Trump administration, both sides say industry has an interest in making sure it works. After all, it was lack of public trust in the old system that brought everyone to the table a year ago to fix it, said Dimitri Karakitsos, who negotiated the chemicals overhaul measure as a staffer for Senate Republicans.
"Industry and Republicans care very much about a credible system that works, and so does EPA," said Karakitsos, now a partner at the law firm Holland & Knight. "If implementation isn’t happening, states ramp up activity again, and that can result in an inconsistent patchwork of regulations and significant impediments to interstate commerce."