The Environmental-Oversight Issue That Could Be a Rare Bipartisan Win

Chemical-safety concerns could lead to congressional pressure on the EPA from both parties.

Rep. John Shimkus
AP Photo/Andrew Harnik
Jan. 23, 2019, 8 p.m.

A rare push for bipartisan oversight of environmental policy is emerging on Capitol Hill.

Lawmakers on both sides of the aisle are signaling serious concerns with the Environmental Protection Agency’s implementation of a groundbreaking law to regulate chemicals in the U.S. market.

That oversight prospect is noteworthy amid a fraught, near-dysfunctional political climate, and even more so for its association with broader environmental regulation—one of the most perennially contentious policy areas.

President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, an update to the 1976 Toxic Substances Control Act, in 2016 after the legislation passed with overwhelming bipartisan support in both chambers. The bill requires risk evaluation for existing and new chemicals.

But since President Trump took the reins, Democrats have hammered the EPA for, in their view, slow-walking the evaluation process for notorious chemicals like asbestos. Environmental and public health advocacy groups are also locked in a series of court battles over EPA action—and lack thereof.

And Republicans, too, are hoping to level some pressure on the EPA.

“I’m all in to having oversight hearings on TSCA. There’s some good and some bad,” Rep. John Shimkus, a Republican architect of the law, told National Journal. “Chemicals can do great things and solve great problems, but they also can create problems if they’re not safe.”

The EPA hasn’t yet conducted risk assessments on the vast majority of the 80,000 known chemicals in the U.S. Those chemicals are used in a huge swath of consumer and commercial products from dry cleaning to construction materials, and safety advocates say insufficient or nonexistent hazard assessments have caused untold numbers of illnesses and deaths.

Approval processes for pesticides and medications are far more rigorous, those advocates say, pointing to separate statutes and regulatory processes for chemical approvals in those products.

The oversight interest from Shimkus, now the ranking member on the Energy and Commerce subpanel on the environment, is critical for the kind of bipartisan effort that is traditionally necessary for pressuring the executive branch to change course on policy.

Rep. Paul Tonko is now leading the subpanel after taking the gavel from Shimkus. The two have worked closely together in the past.

“We’re going to look at TSCA implementation. … That hard [legislative] work can’t go down the drain,” Tonko said. “There’s no secret that there’s been an all-out attack on clean-air and clean-water provisions, and so TSCA, falling into that realm of thinking, could be victimized—the improvements might be victimized—by that same attitude.”

Tonko spokesman Matt Sonneborn indicated TSCA policy will be on the committee's agenda this Congress. “It’s our impression that there is bipartisan interest in oversight and hope it will be among the top priorities for the subcommittee,” he said.

Some Republicans, like Rep. David McKinley and Sen. Shelley Moore Capito, both of West Virginia, also said they’d like to conduct TSCA oversight this Congress.

In the waning days of the Obama administration, then-EPA Administrator Gina McCarthy published a rule to prioritize 10 existing chemicals for risk evaluation—among them asbestos, dioxin, and methylene chloride. Exposure to the latter chemical can cause asphyxiation and has killed dozens in the U.S.

Sen. Tom Carper, the top Democrat on the Environment and Public Works Committee, urged action on methylene chloride during the nomination hearing for Acting EPA Administrator Andrew Wheeler to formally take over the agency after the departure of former Administrator Scott Pruitt.

“I want you to impart a sense of urgency in getting a rule done on that,” Carper said. “It’s actually something that Scott Pruitt did that we thought was right, and here it is two years later and we still haven’t followed through. Let’s get it done.”

The Obama administration proposed a ban on consumer uses and most commercial uses of the paint-stripper methylene chloride. Pruitt, who left the agency amid a wave of ethics scandals, vowed to finalize a ban weeks before his exit.

A new proposal, which advocates fear will be far more limited, is now undergoing interagency review. But the partial government shutdown has stalled the rulemaking process, Wheeler told senators.

“That is something I’ve taken seriously. It’s something that we spend a lot of time [on],” he said. “I’ve spent a lot of personal time on that issue. And I hope we can get that out as quickly as possible.”

Last week, a public health organization called Safer Chemicals, Healthy Families, along with the Vermont Public Interest Research Group, sued the EPA, arguing agency's inaction to date is illegal.

“We filed suit basically to compel them to finalize the rule, since Pruitt himself committed to do that and had recognized that these products need to be banned,” said Bob Sussman, the attorney for Safer Chemicals, Healthy Families and a former EPA deputy administrator. “I can’t look at the different facets of TSCA implementation and feel good, really, about anything that EPA under the Trump administration has done.”

The chemicals industry, which put its full weight behind the TSCA update, maintains that the litigation writ large, including suits on framework rules for the new law, amounts to a “reflexive, negative reaction,” in the words of Mike Walls, vice president of regulatory and technical affairs at the American Chemistry Council.

“EPA is not making a decision solely on the basis of hazard. They are looking at the combination of hazard plus exposure,” Walls said. “Water poses a hazard. But because there’s the potential for people to drown in water, we don’t ban water. We try to restrict access to cases where that hazard might pose a particular exposure problem.”

If confirmed, Wheeler will be under a severe time constraint in publishing risk evaluations.

Proposed and final risk evaluations are due by the end of the year, but the EPA can prolong that deadline by six months, according to the new TSCA law. So far, the EPA has proposed and wrapped up the public-comment period on only one evaluation, for a chemical called Pigment Violet 29, which the agency concluded “does not present an unreasonable risk of injury to human health or the environment.”

Senate Minority Leader Chuck Schumer met with Wheeler last week. Schumer pushed Wheeler to act on methylene chloride, along with other environmental regulations, according to a senior Democratic aide.

Methylene chloride is far from alone among deadly chemicals. Asbestos is no longer produced in the U.S., but thousands of Americans are exposed to the set of minerals, which are used for insulation and other building materials. Asbestos is a carcinogen that leads to tens of thousands of deaths a year, according to some analyses.

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