Legislative Update: EPA Submits Proposed TSCA Evaluation Framework to OMB for Interagency Review

Congress on Recess with Limited Time Before August Break

The House and Senate left Washington for a two-week Independence Day recess at the end of June and are set to return next week. Members will return to a short window and pressure to make progress on the 12 House and Senate FY24 appropriations spending bills before leaving for recess for the month of August. Language in the debt ceiling law seeks to expedite Congress to complete the appropriations process by Jan. 1 or face another 1% cut in funding.

The House has so far advanced six of its bills through full committees and completed two more subcommittee markups.  Meanwhile, Senate Appropriations Chair Patty Murray says the Senate will resume markups on July 11, holding its first subcommittee markup.  The Senate has so far bypassed subcommittee markups for its Agriculture and Military Construction-VA bills last month.

EPA Submits Proposed TSCA Evaluation Framework to OMB Seeking Interagency Review

The Environmental Protection Agency (EPA) on June 29 submitted a proposal to overhaul the Toxic Substances Control Act (TSCA) framework for risk evaluations of existing substances. The rule, currently under interagency review, aims to incorporate new policies introduced by the Biden administration and may outline a “reimagined” process considering the limited budget of the toxics office. EPA chemicals chief Michal Freedhoff says the proposed framework will codify improvements made in chemical reviews and revise the existing framework finalized under the Trump administration in 2017.

Under the Biden administration, the EPA has implemented three major changes to evaluations of existing chemicals currently opposed by industry groups. First, it abandoned the “regulatory nexus” model used by the Trump EPA, which ensured that chemical risks were streamlined and only evaluated within the appropriate regulatory framework. Second, it has adopted a sweeping “whole chemical” approach, making a single determination for all applications of a substance rather than assessing each condition of use separately. This misguided approach disregards the importance of assessing risks based on specific and unique conditions of use of the chemical.  Third, it no longer assumes that workers will always use protective gear and follow Occupational Safety and Health Administration (OSHA) rules, considering those factors only during rulemaking and neglecting the true conditions of use for chemicals.

Even if the EPA implements a rule authorizing these changes, industry groups may challenge their compliance with the TSCA. Some have argued that the whole-chemical model renders parts of the TSCA redundant and fails to provide formal findings on specific uses’ risk levels. Such findings are crucial for the preemption of state policies and judicial review.

During her keynote address to a conference on TSCA reform, Freedhoff hinted at additional changes that the EPA plans to make to risk evaluations in the future. These changes are seen as necessary to align the Toxic Substances Control Act (TSCA) program with its allocated budget, as Congress authorized a smaller increase than requested to meet the program’s deadlines.

Freedhoff emphasized the need to reimagine existing chemical risk evaluations and find ways to expedite the process due to budgetary constraints. She acknowledged that the agency has struggled to meet deadlines under the revised law and stressed the importance of swiftly implementing scientific findings to implement chemical safety protections.  Specifically, she suggested prioritizing existing chemicals for evaluation and rulemaking in smaller groups rather than launching all 20 chemical evaluations simultaneously, resulting in a strain on meeting statutory deadlines. The new approach would involve prioritizing “five or six” chemicals for review each year, and creating a rolling schedule, which is expected to distribute the workload more effectively throughout the TSCA life cycle.

According to the law, the agency must propose a rule to manage unreasonable risks within one year of issuing the review and finalize the policy a year later. However, to date, the EPA has proposed only three rules for evaluations completed in 2020 and early 2021, with the first rule, concerning chrysotile asbestos, targeted for final action in January.

Agencies Race to Update WOTUS while AJDs Remain on Hold

Michael Connor, assistant secretary of the Army for Civil Works, told The House Transportation and Infrastructure Committee that the EPA and the Army Corps of Engineers are planning to issue a rule that narrows the definition of “waters of the United States” (WOTUS) in response to the Supreme Court’s Sackett ruling. The administration’s goal is to resume the issuance of approved jurisdictional determinations (AJDs) once the rule is finalized.

Connor told Rep. David Rouzer (R-NC) that instead of initial guidance, the agencies are expediting the rulemaking process. He indicated the Corps prioritizes the final rulemaking process before resuming AJD issuance. Connor expects a direct final rule to be issued “expeditiously,” allowing for a comment period. However, specific decisions regarding the rule and comment period are yet to be finalized.

In a June 21 letter to EPA and the Department of the Army, Rep. Rouzer and other Republican lawmakers cautioned against any delay in adopting the Sackett ruling. They urged the agencies to swiftly provide guidance to enable the Corps to resume AJD issuance.  Industry groups have also sent letters to EPA reinforcing this message.

Connor acknowledged that the Supreme Court ruling provides clarity, but some nuances may still be subject to debate.  He emphasized the need for a clear final rule to align the Corps’ jurisdictional determinations with the regulations in place.

Connor said specific provisions, such as the ‘significant nexus’ test, will be removed from future rulemaking in light of the Sackett decision. However, provisions like the “relatively permanent” test, which the court upheld, are already part of the existing rule. He also mentioned that terms like “continuous surface connection” in the 2023 rule will be preserved, though challenges may arise depending on their interpretation.