March 04, 2019

New Leadership at EPA Likely to Alter Agency’s Approach to TSCA Administration

Lawrence Culleen and Camille Heyboer

The confirmation of Alexandra Dunn as assistant administrator for the U.S. Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention and confirmation by the Senate Environment and Public Works (EPW) Committee of Andrew Wheeler as EPA administrator will likely mark the beginning of a new effort to provide greater transparency in how the Agency implements certain aspects of the Toxic Substances Control Act (TSCA) amendments. Ms. Dunn, the former administrator of EPA Region 1, was unanimously confirmed by the U.S. Senate on January 2, 2019. The EPW voted to approve Mr. Wheeler’s confirmation on February 5, 2019. On February 28, 2019, Mr. Wheeler was confirmed by the Senate. The vote was 52-47, mainly along party lines. Every Democrat voted against Mr. Wheeler and Senator Susan Collins (R-ME) also voted against him.

Ms. Dunn’s confirmation hearing was held in November 2018. During her hearing, Ms. Dunn faced questions from both Democratic and Republican members of the Senate Environment and Public Works Committee on EPA’s administration of TSCA. Among other issues, senators raised concerns about EPA’s delay in reviewing new chemical notices under TSCA Section 5. Between June 2016 and December 2018, EPA received about 2,500 new chemicals cases for review. As of December 2018, EPA had 553 cases still under review. It is likely that this number has only grown as a result of the five-week government shutdown. Ms. Dunn indicated that she believes that EPA can find a middle ground between processing new chemicals cases quickly, and ensuring a comprehensive review of these cases.

Several senators also expressed unease about EPA’s approach to defining the scope of risk evaluations required under the 2016 amendments to Section 6 of TSCA. In particular, Ms. Dunn was made aware of certain senators’ concerns about EPA’s efforts to exclude what might be reasonably foreseen uses of a chemical substance from the scope of a TSCA risk evaluation. Ms. Dunn declined to make any commitments with respect to the scope of risk evaluations, but promised that the Agency would conduct risk evaluations in accordance with the law. Senator Tom Carper (D-DE), ranking member of the EPW Committee, also asked Ms. Dunn to commit to allowing the National Academy of Sciences to review EPA’s August 2018 Systematic Review Method, which describes how EPA intends to evaluate scientific information during the risk evaluation process.

Following Ms. Dunn’s confirmation hearing, Mr. Wheeler sent a letter to Senator Carper following up on the many requests made during and after Ms. Dunn’s confirmation hearing. The correspondence committed EPA to take certain actions in 2019 with respect to implementing TSCA. Among them, Mr. Wheeler promised that, beginning May 31, 2019, EPA would begin to publish all premanufacture notices and supporting documents that the Agency receives within 45 days of receipt. EPA will also publish an updated version of its New Chemicals Decision-Making Framework, which describes EPA’s process for reviewing new chemicals notices submitted under Section 5 of TSCA. As requested by Senator Carper, EPA also agreed to submit its Systematic Review Method to the National Academy of Sciences for review and to make public any feedback that the Agency receives. In the letter, Mr. Wheeler also committed to providing a 60-day public comment period for all the Agency’s upcoming drafts of the first 10 risk evaluations. Nine of the evaluations are expected to be released in draft form early in 2019. EPA only is required under TSCA Section 6 to provide a 30-day public comment period.

Actions taken by EPA immediately following the end of the government shutdown indicate that the Agency intends to follow through quickly on these commitments. On Monday, January 28, 2019––the first business day after President Trump signed a continuing resolution reopening the federal government––EPA withdrew from review by the Office of Management and Budget two proposed rules relating to pesticides that had drawn attention from Senator Cory Booker (D-NJ) during Ms. Dunn’s confirmation hearing and that Mr. Wheeler committed to withdrawing in his subsequent letter to Senator Carper. EPA’s timely fulfillment of this commitment suggests that the Agency is prepared to listen to feedback from members of Congress about the administration of TSCA and to make changes to its approach when the administration deems it appropriate.

Lawrence Culleen and Camille Heyboer

Published: March 4, 2019

Lawrence Culleen is a partner in the environmental practice group at Arnold & Porter. Camille Heyboer is a law clerk in the environmental practice group at Arnold & Porter and a student at George Washington University Law School.