Issue Date: May 29, 2017
Environmental rules under attack
In keeping with his campaign promise to reduce regulatory burdens, U.S. President Donald J. Trump ordered federal agencies in late February to ferret out regulations that can be “repealed, replaced, or modified to make them less burdensome.” Trump’s order requires federal agencies to identify rules that, at a minimum, “eliminate jobs or inhibit job creation; are outdated, unnecessary, or ineffective; or impose costs that exceed benefits.”
The Environmental Protection Agency is one of the biggest targets of the Trump Administration’s regulatory reform effort. During a series of public meetings in April and May, the agency was flooded with suggestions from state and local governments, consumers, environmental organizations, industry, and other stakeholders regarding which rules to cut and which ones to keep. In general, environmental groups stressed the need for more, not less, regulation to protect public health and boost confidence in the safety of household chemicals and pesticides. Consultants and representatives from industry trade groups, on the other hand, picked through details of their least favorite regulations, urging EPA to ax or delay specific parts.
Here are some of the most controversial chemical-related regulations that could be the target of potential reform. EPA has already taken action since the public meetings to delay some of the rules.
At a special session on reforming pesticide regulations, representatives of environmental groups spoke out against the premise of the meeting, saying EPA was asking the wrong questions. Rather than repeal, replace, or modify any pesticide regulations, EPA should focus on strengthening the rules to better protect the environment, they said.
Pesticide manufacturers and their trade associations, meanwhile, urged EPA to repeal rules that they said are burdensome. One of those rules requires a Clean Water Act permit to spray pesticides near, over, or into water. Such permits are duplicative, they argued, because EPA already requires pesticides to be reviewed for safety under the federal pesticides law.
EPA is required to regulate pesticides under the Clean Water Act because of a 2009 decision by a federal appeals court. Republican lawmakers in Congress have attempted to eliminate the requirement for such water permits, but they have not succeeded.
At the meeting, industry organizations, some state regulators, and the U.S. Department of Agriculture also called on EPA to delay the effective date of regulations aimed at protecting applicators from being exposed to pesticides. The groups told EPA that state governments, which are responsible for implementing the rules, have limited resources and capacity to do so.
EPA strengthened pesticide applicator protections in 2015, setting an effective date of Jan. 2, 2017, for most requirements. In addition, the agency beefed up certification requirements for applicators of restricted-use pesticides. That companion rule was scheduled to take effect on May 22, but EPA has now delayed the date for a year.
EPA’s agricultural worker protection standard is costly for states, said Sheryl H. Kunickis, director of pest management policy at USDA. Kunickis told EPA that she is not confident the rule will decrease risks to pesticide applicators, so the costs outweigh the benefits.
Kunickis also joined farm groups and others at the meeting in calling for EPA to step back from the mammoth task of assessing the risks of pesticides for endangered species. The agency in 2013 adopted an interim approach based on recommendations from the National Academy of Sciences. The new process was intended to help streamline risk assessments and address EPA’s failure to comply with the Endangered Species Act with respect to pesticide registrations.
But farm groups and the pesticide industry say the process is still too cumbersome. They suggested that EPA obtain monitoring data to get a better handle on the risks of pesticides for endangered species. Such data are also needed to better understand the impact of pesticides sprayed near, over, or into water, they said.
Nanomaterial data reporting
Manufacturers of nanoscale materials are urging EPA to revisit a data collection rule finalized late in the Obama Administration. The regulation requires manufacturers to provide EPA with data on new and existing nanomaterials, including chemical identity, manufacturing processes, production volume, and toxicity information. The rule applies to commercial materials with dimensions of about 1–100 nm.
Trade groups representing various sectors of the nanotechnology industry, including chemical processing, paint and coatings, and motor and equipment manufacturing, raised concerns about the one-time reporting rule.
Raleigh Davis, assistant director of environmental health and safety at the American Coatings Association, claimed the rule will cost the paint and coatings industry up to $1.5 million. “This is a cost of over $100,000 per company,” she noted. Davis urged EPA to define “unique and novel properties,” which the agency uses as a requirement for a substance to be classified as reportable.
Irene Hantman, an attorney with Verdant Law, a firm that represents chemical processors, asserted that the rule is overly burdensome and will stifle innovation. “EPA’s economic analysis estimates that 28 reports will be submitted for each chemical,” she said. “This is unnecessarily duplicative.”
EPA has delayed the effective date of the rule to Aug. 14. The agency is also seeking comments on newly released guidance intended to help industry understand which substances are covered by the reporting requirements.
Formaldehyde emissions from wood composites
EPA got an earful of comments about a rule to reduce exposure to formaldehyde emissions from hardwood plywood, particleboard, and other composite wood products. The rule was finalized late in the Obama Administration after five years of negotiations with industry. The Trump EPA has since delayed several of the rule’s compliance dates. Emission standards, record keeping, and labeling provisions have been extended until March 22, 2018. Import certification requirements have been delayed until March 22, 2019.
Representatives of North American manufacturers of composite wood products for the most part urged EPA not to delay implementation of the rule any longer. They said that the lack of a federal emission standard gives an unfair advantage to imported products, many of which are not in compliance with the rule. The North American industry has complied with the rule for many years, they noted. The furniture industry, however, pushed for an exemption for laminated products that contain formaldehyde glues or resins.
Bill Perdue, vice president of regulatory affairs at the American Home Furnishings Alliance, which represents the residential furniture industry, estimated that the rule will cost $210 million in new compliance expenses. Requiring certification by both the makers of the raw panels and the fabricators of laminated products “is costly, redundant, and burdensome,” he told EPA.
The rule gives manufacturers of laminated products until 2024 to find an alternative resin to formaldehyde. The American Chemistry Council’s formaldehyde panel, which represents chemical manufacturers, claims that for wood products “there is no alternative that can provide a better combination of technical performance and economic value than formaldehyde-based resins.”
Asbestos in schools, chlorine production
EPA asked the public for feedback on whether any regulations have achieved their original objective and are no longer necessary. A 1986 amendment to the Toxic Substances Control Act, the Asbestos Hazard Emergency Response Act (AHERA), generated a lot of discussion at one of the public meetings.
AHERA regulations require schools to inspect their buildings for asbestos-containing materials and prepare management plans to prevent or reduce asbestos exposures. Asbestos is defined by regulators as a group of six naturally occurring fibrous silicate minerals. Nearly all of it in use today is the chrysotile form. The substance is a known human carcinogen.
Most comments presented at the meeting were in favor of the AHERA rules. “These regulations have made for a safer, more effective, and more easily governed asbestos abatement industry for all persons involved,” said Brent Kynoch, managing director of the Environmental Information Association, which was founded to disseminate information about asbestos in buildings. “I can’t think of a less burdensome type of regulation,” Kynoch said. “The regulations don’t require the removal of asbestos, only the identification of asbestos in buildings and the development of a plan for dealing with it.”
But some people at the meeting questioned why the burden of completing a survey every six months is put only on schools and not other facilities. AHERA “puts a significant cost burden on schools that does not exist anywhere else, which tends to lead to confusion and noncompliance,” said Michael Sharp, CEO of Hazard Management Services, a small consulting firm in California. “This creates record-keeping requirements that do not do anything to protect anyone and yet increase costs,” he stated.
Meanwhile, EPA faced pressure from environmental and public health groups at the meeting to use its authority under the revised Toxic Substances Control Act to ban all uses of asbestos. The chlor-alkali industry uses more than 90% of the asbestos sold in the U.S. in diaphragms to produce chlorine, according to the U.S. Geological Survey. Chlorine producers are urging regulators not to restrict the use of asbestos diaphragms, claiming the asbestos is confined in the chlor-alkali process, essentially eliminating worker exposure.
Lead-based paint removal
Public comments to EPA about lead-based paint regulations filled an entire afternoon.
Some construction contractors at the meeting spoke in favor of easing EPA’s rule on renovation, repair, and painting so it would apply only to buildings built before 1960. They also argued for an opt-out provision for homeowners when no at-risk individuals, such as young children, occupy a home. Such a provision was removed in 2010, leading to increased costs for homeowners of hundreds of millions of dollars, said Kevin McKenney, director of government affairs for the Window & Door Manufacturers Association.
McKenney also argued that inaccurate lead test kits have cost renovators and homeowners thousands of dollars in cases where positive results were obtained but lead-based paint may not have been present. Factoring in the current lack of a commercially available test kit would likely prove the rule to be far more costly than what EPA determined when it issued the regulation, he said.
Representatives of other businesses encouraged EPA to consider all paint as potentially hazardous. This move would level the playing field for contractors because they would all be required to handle paint and coatings in the same way. “Paint with no lead in it at all could contain cadmium, barium, mercury, asbestos,” and numerous other hazardous ingredients, said Sharp.
Many advocacy groups, including the Environmental Defense Fund, Green & Healthy Homes Initiative, National Center for Healthy Housing, and Natural Resources Defense Council, called for strengthening, not weakening, regulations aimed at reducing lead exposure. Such regulations are critical for protecting people’s health and safety, they said. The groups also called for more enforcement of lead paint regulations.
“The elimination of funding for and so-called reform of EPA renovation, repair, and abatement regulations will cause increased blood lead exposure to both children and workers,” said David Jacobs, chief scientist at the National Center for Healthy Housing, which conducts research on safe and healthy homes.
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