EPA’s Proposed Chemicals of Concern List Under OIRA Review for Two Years: That Goose is Cooked

Two years ago tomorrow, Saturday, EPA sent a seemingly modest idea over to the White House for a quick review.  The agency wanted to establish a simple list of “chemicals of concern.”  These weren’t chemicals that were necessarily going to be subject to bans or other restrictions, but they present significant enough hazards and are distributed widely enough in the environment to raise some eyebrows among EPA’s toxics staff.  Among the chemicals that were being proposed for inclusion on the list:  phthalates, PBDEs, and BPA.  The rule wasn’t expected to cost much, but EPA sent it to the White House anyway, probably because this was the first time the agency would use a particular statutory authority Congress first granted in 1972.  But two years after EPA sent the proposal to the White House, it is still sitting on a desk somewhere at OIRA, and I think it’s time to say it: OIRA has killed this rule.

It’s troubling that such a small thing as a list of dangerous chemicals could be dashed by the White House.  In 2009, GAO added EPA’s toxics program to its list of “high-risk programs warranting attention from Congress and the executive branch.”  Surely, this is not the kind of attention GAO had in mind.  GAO’s auditors have noted that

EPA has a limited ability to provide the public with information on chemical production and risk because of TSCA's prohibitions on the disclosure of confidential business information. About 95 percent of the notices companies have provided to EPA on new chemicals contain some information claimed as confidential.

EPA has a team of experts who work tirelessly to screen every new chemical that comes on the market – some 700 new chemicals every year.  While they don’t have the resources or authority to ensure only “safe” chemicals go on the market, their ability to review whatever studies industry submits and run models to predict toxic effects gives EPA staff a uniquely broad perspective from which they are able to make wise judgments about which chemicals present the greatest concern for human health and the environment.  But OIRA does not want us to know what they think.  Instead, we’re left to rely on the media and public interest community to help us sort through the available scientific evidence to find chemicals that we should be concerned about.

The most remarkable aspect of OIRA’s decision to kill this proposal is that it was aborted even before the public got a chance to weigh in.  The document that EPA sent over to the White House for review was a notice of proposed rulemaking.  Even if OIRA had approved it, EPA would have still had to publish the proposal, take comments, respond to those comments, decide whether to go through with the proposal, and then (if it was going to move forward) send the final rule back to OIRA for further review.  It seems the White House has calculated that having to respond to the chemical industry’s complaints is too much of a burden to justify giving the public an opportunity to get a window into EPA’s thinking on the toxic chemicals that pervade our lives. Or perhaps OIRA Administrator Cass Sunstein, who has argued that the public is highly irrational, genuinely believes that the chemicals in question will be highly stigmatized in the market – and that that is not acceptable.  Either way, the public is losing.

As we noted here last year,

Between Jun. 2010 and Jan. 2011, OIRA hosted eight meetings to discuss the proposed list. Of those meetings, seven were with industry groups and trade associations including ExxonMobil, Dow Chemical, the American Chemistry Council, and the Society of the Plastics Industry. One meeting was with public health and environmental advocacy groups including the American Association of Intellectual and Developmental Disabilities, and the Natural Resources Defense Council.

CPR has documented (PDF) that meetings with OIRA tend to be dominated by industry, focused disproportionately on EPA rules, and are linked to more changes in the proposals.  The chemicals of concern proposal is a shining example of just how powerfully OIRA can strong-arm an agency.