Death by Delay: Obama Team Stalls on Chemical Regulation

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The U.S. Environmental Protection Agency (EPA) has drafted a "chemicals of concern" list to restrict the use of certain chemicals and alert the public to their possible dangers. But the list remains secret and dormant because it's stuck at the Obama administration's Office of Information and Regulatory Affairs (OIRA) for review.

OIRA is a division of the U.S. Office of Management and Budget (OMB). According to Katie Greenhaw, Regulatory Policy Analyst at the government watch-dog group OMB Watch, OIRA has 90 - 120 days to review rules from a regulatory agency, before releasing the rule back to the agency to open it up for public comment. Rules then go back to OIRA for additional review before being published as final rules. This rule has been stuck at OIRA for almost two years. That means the public hasn't even laid eyes on it.

Secret List

The EPA has hinted that its list of chemicals that may cause "unreasonable risk of injury to human health or the environment" may include "a category of eight phthalates, a category of polybrominated diphenyl ethers (PBDEs), and bisphenol A (BPA)."

Phthalates: Plastic Softeners

Phthalates, called "plasticizers," are industrial chemicals used in plastics like polyvinyl chloride (PVC). They're now ubiquitous, found in, among other things, toys, food packaging, hoses, raincoats, shower curtains, vinyl flooring, wall coverings, lubricants, adhesives, detergents, nail polish, hair spray, and shampoo. Their presence in PVC gave it the nickname "poison plastic." The eight phthalates of particular concern to the EPA are listed here.

The European Union banned phthalates in children's toys in 1999 out of concern that they might damage the sexual development of children. According to the U.S. Department of Health and Human Services' National Toxicology Program, individual phthalates have been found to disrupt the endocrine system, reduce sperm counts, and cause structural abnormalities in the reproductive systems of male test animals. The Centers for Disease Control and Prevention (CDC) cites research linking phthalates to liver cancer in test animals.

PBDEs: Flame Retardants

PBDEs are a class of brominated flame retardants, first produced commercially in the 1970s. PBDE production constitutes 25 percent of all flame retardant production. Several PBDEs are banned by signatory countries under the "Stockholm Convention on Persistent Organic Pollutants." The PBDEs of particular concern to the EPA are listed here.

According to a 2008 article in Environmental Health News, "In animal studies, PBDEs alter development of the brain and reproductive system and disrupt thyroid hormones. Spreading from pole to pole via oceans, air and consumer products, they have been building up in the bodies of people and wildlife around the world, particularly in the United States." Other studies link them to developmental neurotoxicity in mice and show the potential of some PBDEs to be endocrine disruptors.

BPA: Plastic Hardener

Bisphenol A (BPA) is used in the manufacturing of hard plastics such as in baby bottles, child sippy cups, and water bottles (although some of these products are now manufactured and advertised as "BPA-free") and in most internal linings of canned foods. It can leach into liquids and foods, particularly when exposed to heat. As CMD reported recently, consumer pressure recently induced Campbell Soup to begin to phase BPA out of its can linings.

In its 2008 report on "potential human reproductive and developmental effects of bisphenol A," the National Toxicology Program stated, "some concern for effects on the brain, behavior, and prostate gland in fetuses, infants, and children at current human exposures to bisphenol A." The Breast Cancer Fund, which successfully campaigned for Campbell's BPA phase-out, quotes studies showing that BPA, "has been associated with increased risk for cardiovascular disease, miscarriages, breast and prostate cancer, reproductive dysfunction, metabolic dysfunction and diabetes, and neurological and behavioral disorders."

OIRA: Where Protective Rules Go to Die

A November 2011 report (PDF) by the Center for Progressive Reform found that OIRA, which it called "a killing ground for protective rules," has "changed 84 percent of environmental regulations, and 65 percent of other agencies' regulations, and the change rate is worse [under Obama] than it was under George W. Bush." Many critics contend the OIRA was created by Congress in 1980 for the sole purpose of politicizing the regulatory process and letting the White House interfere with rulemaking that is normally undertaken by regulatory agencies.

The performance of OIRA and OMB is not surprising when one takes a closer look at Obama's hires. OMB has been led by a string of investment bankers under the Obama administration. Obama's first pick, Peter Orszag, resigned in 2010 and is now vice chairman of Citigroup's global banking business. He was replaced by Jeffrey Zients, the millionaire CEO of the Advisory Board Company, who then went on to become the nation's first "Chief Performance Officer," a position created by Obama in 2009. He was replaced by Jacob Lew, who had held the same position under Clinton. In between, Lew was chief operating officer of Citigroup's Alternative Investments unit, a proprietary trading group that invested in a hedge fund "that bet on the housing market to collapse," according to the ''Huffington Post''. He was named Obama's new chief of staff in January 2012, so Zients is back in charge.

The Obama administration's current "regulatory czar" at OIRA, Cass Sunstein, is a prominent law professor, influential author, and Democratic advisor. However, Sunstein has been called "appaling[ly anti-regulatory]." According to Frank O'Donnell, president of Clean Air Watch, "as an academic, Sunstein ... urged ... changing the Clean Air Act to require that national clean air standards pass a cost-benefit test -- a change in the law long sought by big corporate polluters who understood this meant a weakening of the law in the real world."

As for the hold-up on this particular rule, OMB Watch's Greenhaw told CMD, "The 'chemicals of concern' list is about the public's right to know... There is no other explanation for the delay than industry delay. ... Industry groups have argued that it will place a stigma on chemicals, so that even if the EPA doesn't regulate the chemicals, putting them on the list will deter consumers."

Addressing a "Flawed" Law

Last September, Senators Frank R. Lautenberg (D-NJ) and Sheldon Whitehouse (D-RI) sent a letter (PDF) to Sunstein asking OIRA to conclude its review of the list of chemicals of concern, and pointed out that the Toxic Substances Control Act (TSCA) of 1976 is so flawed that it prevents the EPA, "from taking even modest steps to collect adequate data on chemical risks or to appropriately manage those risks."

Jason Rano, Director of Government Affairs at the Environmental Working Group (EWG), and Andy Igrejas, Campaign Director at Safer Chemicals, Healthy Families (SCHF), both applaud the EPA for attempting to warn the public for the first time in a generation about the new data on the chemicals, but recognize that the TSCA needs to be overhauled.

Igrejas told CMD that publishing this chemicals of concern list is the, "only way under existing law that the EPA can put the burden on industry to demonstrate the safety of their chemicals. Otherwise, the burden is entirely on the government. ... The White House, by blocking the list, has sent a message to the chemicals industry, saying, 'Don't worry, we'll never let it get there.'"

Because OIRA is considered to be a dead end for regulations, public interest groups have focused their efforts on revamping TSCA, an established failure. They support a bill introduced by Senator Lautenberg, the Safe Chemicals Act (S. 847), which amends TSCA "to ensure that risks from chemicals are adequately understood and managed." Among other things, it would promote the use of safer alternatives to hazardous chemicals and require chemicals currently on the market to meet a risk-based safety standard.

To learn more, see the SCHF site here and a concise Environmental Defense Fund chart here (PDF).

The Safe Chemicals Act has been referred to the Senate Environmental Committee and may see floor action in April. Citizens can ask their senators to join the list of cosponsors sending an email to Congress via the SCHF website here.