Will the new Congress impede the EPA's regulatory agenda?
The New Year offers both promise and trepidation in 2011 from EPA's Office of Chemical Safety and Pollution Prevention (OCSPP).
Many expect a freeze in domestic program spending, but that could just be the beginning of a general squeeze on EPA resources. Hiring restrictions, personnel ceilings, and reductions in contractor support can have a relatively immediate impact on program operations if critical skills are lost due to retirement, general turnover, or reduced contractor support.
Also, EPA will likely be subject to a variety of restrictions or reductions in its operating programs. For example, if the cap and trade approach to climate change is not available, many will want to have the agency continue efforts to control carbon emissions via existing authority. This could inspire an effort by those opposed to such a plan to use the appropriations process to restrict the range of possible EPA options.
The particulars of the discussion of possible Toxic Substances Control Act (TSCA) changes made during the past two years are moot. Rep. Henry Waxman's (D-Calif.) absence as the Chair of the House Energy and Commerce Committee could have great implications for possible TSCA legislation and the congressman's proposals will need to be reduced in scope to have a realistic chance of enactment. Sen. Frank Lautenberg (D-N.J.) is expected to support more extensive changes, but even in the Senate some of the new members can be expected to oppose any legislation that could expand government, or adversely impact jobs.
Enhanced chemical management program
A key proposed action is EPA's effort to propose a chemicals of concern list under TSCA Section 5(b)(4). The rule is being subjected to close scrutiny because of policy implications of the creation of such a list.
Other actions are also being developed by EPA's Office of Pollution Prevention and Toxics (OPPT) and are expected to be submitted for review and released in 2011. On Jan. 7, 2011, EPA issued the High Production Volume (HPV) orphan TSCA test rule. Other rules expected soon include the rule promulgating proposed changes to the Inventory Update Rule (IUR) and the siloxanes Chemical Action Plan.Endocrine – SDWA chemicals
The year 2011 will see the first issuance of Safe Drinking Water Act (SDWA)/Federal Food, Drug and Cosmetic Act orders requiring endocrine screening of 'other SDWA chemicals' identified by EPA in its November 2010 Federal Register notice. Key issues in this regard will concern chemicals for which there is little evidence of their presence in sources of drinking water (the Contaminant Candidate List 3 listing for certain chemicals was based on the Toxic Release Inventory releases or production volume information rather than monitoring data) and that a substantial population may be exposed.
Regulation of nanoscale materials
EPA is expected to propose in 2011 a Significant New Use Rule under TSCA Section 5 for nanoscale chemical substances. The agency is also working on a TSCA Section 4 test rule under which chemical manufacturers would be required to develop data production to determine the health effects of certain multi-wall carbon nanotubes and nano-sized clays and alumina. Additionally, EPA is reportedly working on a proposed TSCA Section 8(a) rule to establish reporting requirements for certain nanoscale materials.
If nothing else, 2011 will be interesting, especially given the lack of alignment between EPA and Republican leadership in the House.