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Ex-EPA officials back bipartisan TSCA reform bill

Environmental News

 Ex-EPA officials back bipartisan TSCA reform bill      

Sam Pearson, E&E reporter

Published: Wednesday, March 25, 2015

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A group of former top U.S. EPA legal officials who served in the past four administrations recently said they back a bipartisan chemical safety bill under consideration in Congress, offering a counterpoint to legal experts from many states who fear the impact of the proposed changes.

The lawyers sent a letter to leaders of the Senate Environment and Public Works Committee last week ahead of a panel hearing on the hotly debated S. 697, or the “Frank R. Lautenberg Chemical Safety for the 21st Century Act.”

That bill is a “substantial and necessary improvement over the current Toxic Substances Control Act,” the former officials wrote in the letter, which was made public yesterday by the Environmental Defense Fund. The legislation will give EPA “greater authority to address potentially risky chemical substances in commerce,” they added.

Signatories to the letter included Scott Fulton, EPA’s general counsel from 2009 to 2013; Marianne Horinko, an acting EPA administrator and assistant administrator of the Office of Solid Waste and Emergency Response during the George W. Bush administration; Roger Martella, a former EPA general counsel and Department of Justice Environment and Natural Resources Division attorney who served during the Clinton and Bush administrations; and Ronald Tempas, a former assistant attorney general at DOJ’s Environment and Natural Resources Division during the Bush and Obama administrations.

The letter was also signed by former EPA General Counsel E. Donald Elliott, who represented the agency when it lost the famous Corrosion Proof Fittings case in 1990, in which a federal judge ruled that EPA could not ban asbestos. That case, like the current debate, centered on the definition of “unreasonable risk.”

Under TSCA, EPA must prove that it has chosen the “least burdensome” option to reduce an “unreasonable risk” posed by a chemical substance. The law does not define what “unreasonable risk” means, but courts have interpreted it as a mandate to weigh the likeliness of harm occurring against the benefits of reducing exposure to a chemical. However, the agency has found it a difficult standard to meet, in part because the benefits can be difficult to quantify. In addition, the “least burdensome” requirement forces EPA to prioritize minimizing costs to industry above protecting the public health, critics say.

In the Corrosion Proof Fittings case, the 5th U.S. Circuit Court of Appeals ruled that EPA had not proved that asbestos exposure was an “unreasonable risk” because it did not weigh the benefits of asbestos, such as its ability to prevent the spread of fires in buildings. Ultimately, the ruling greatly limited EPA’s authority and is considered a key reason why it has not attempted to ban a chemical since.

The Udall-Vitter bill would remove the “least burdensome” requirement but keep a variation of the “unreasonable risk” language. The bill would require EPA to ensure “without taking into consideration cost or other nonrisk factors, that no unreasonable risk of harm to health or the environment will result from exposure to a chemical substance under the conditions of use,” either to the general public or to susceptible subpopulations identified as being at greater risk.

The former EPA officials’ letter came in direct response to an earlier letter by public-interest group attorneys and legal scholars arguing that the safety standard in the pending bill was “deeply problematic.” The groups had warned that the bill could result in legal ambiguities that ultimately would have to be decided by federal courts, which have a history of limiting EPA’s authority under the existing TSCA law (E&E Daily, March 24).

Elliott and others wrote that the safety standard in the bill by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) could not be compared to how courts have interpreted the standard in TSCA because the provisions are different.

“While S. 697 incorporates the words ‘unreasonable risk’ as the new safety standard, it makes clear that ‘unreasonable risk’ as included in S. 697 is not to be interpreted as it has under the existing TSCA,” the attorneys wrote, adding that similar risk language exists in other safety laws and has not seen the enforcement problems associated with TSCA.

Though opponents have noted that the Udall-Vitter bill requires a cost-benefit analysis when EPA decides what regulation to issue in order to address the risk of a chemical found to be harmful, the attorneys wrote that this “is a requirement applicable to federal rulemaking that has been in effect through executive orders for over 33 years.”

EPA’s current top attorneys have kept their views closely held on the legislation. At an Environment and Public Works hearing last week, Jim Jones, EPA’s assistant administrator for chemical safety and pollution prevention, said EPA had not taken a position on the bill.

Lawmakers and staff are set to huddle together in the weeks ahead to mull over possible tweaks suggested at the hearing (E&E Daily, March 24).

Posted on: March 8, 2015, by : FAS SWFL