In late 2009, when Lisa Jackson, at the time President Barack Obama's new head of the Environmental Protection Agency (EPA), invoked a long-existing but never-before-used power to to create a list of "chemicals of concern," the administration appeared to be putting chemical companies on notice that it planned to be aggressive about regulating risks from exposure to the industry's product. Jackson's list included eight of the common plasticizers known as "phthalates" that have been shown to cause to reproductive abnormalities in animal studies and that have also been linked to health problems in humans. They are used in products from vinyl flooring to cable wiring to backpacks, raincoats, and other products — even sex toys.
Three years later, Jackson, seen at right, is no longer in office, and the proposal has never gotten out of the draft stage. Instead it languishes in regulatory purgatory in the Office of Information and Regulatory Affairs (OIRA), an obscure but extremely powerful division of the White House Office of Management and Budget (OMB). OIRA is charged with reviewing regulations before they take effect. No other EPA regulation has been under review longer, according to a search of records hosted by OIRA.
Government records show that over a 15-month period following EPA's submission of the draft proposal to OIRA, agency officials conducted eight meetings with outside groups concerning the proposal. As the spreadsheet below shows, industry representatives outnumbered those from nongovernmental organizations — for the most part, environmentalists — by a ratio of nearly two to one. Prominent among the industry groups are the American Chemistry Council (ACC), the organization that represents large chemical manufacturers, ExxonMobil, BASF, the Vinyl Institute, and others. The industry groups maintain that danger posed by these chemicals has not been definitively proven.
In this letter submitted to OMB by ExxonMobil in conjunction with a June 2010 meeting, the company defends two phthalates in particular, DINP and DIDP. "A proposal to list these chemicals…will have significant impact on public and industry perceptions and would send a signal to the market place that these substances are the highest priority for elimination through regulation and/or voluntary actions…[I]t is our belief that such a listing may offer no improvement to health and environmental protection; and would be costly to U.S. businesses, lead to a competitive disadvantage with other industrial countries, and have a detrimental effect on U.S. exports and jobs."
On the other side are environmental and consumer groups that are pushing for stronger regulation of phthalates, such as the Environmental Defense Fund and the Natural Resources Defense Council. They have backup by two Democratic senators, Sheldon Whitehouse of Rhode Island and Frank Lautenberg of New Jersey. The two wrote this letter to Cass Sunstein, then OIRA Administrator, urging the agency to release the chemicals of concern list. "[EPA] should be permitted to take the modest step of signaling its concern about these chemicals to the public and the market," they wrote. The two senators have enjoyed financial support from environmental groups, collecting more than $270,000 combined for their campaigns over the years, according to a search on Influence Explorer.
Sunstein, now a professor at Harvard University, recently penned a book, Simpler, the Future of Government, in which he writes about his get-tough reign at OIRA. He doesn't mention the "chemicals of concern list" directly, but does note that : "[A] lot of potential rules, favored by one or another influential group, never saw the light of day." An email query to Sunstein was not returned by the time of this posting, nor was a query to OIRA.
Environmental groups criticize OIRA's hold on the "chemicals of concern" list. "Congress clearly gave EPA authority…to alert the public and the market to chemicals that may pose significant risks," said Dr. Richard Denison, senior scientist at the Environmental Defense Fund. "By not even allowing EPA to propose and take public comment on a rule it has clear authority to issue, OIRA is both undercutting Congress' intent and thwarting the democratic and transparent process by which such rules are supposed to be developed."
The delay on publication of the "chemicals of concern" list is typical when it comes to agency efforts to regulate phthalates. None of the planks in the EPA's proposed "phthalates action plan" are final. And in areas where the agency has made the most progress, there is less controversy. For example, in 2012, it published a rule proposing regulating the production of particular phthalate, DnPP; the agency is now reviewing comments before finalizing the rule. However, manufacturers have already phased out this chemical, which is no longer manufactured in the U.S. or Europe. The proposal garnered only four comments–the ACC didn't bother.
Meanwhile, as previously reported in early March by Sunlight, the Consumer Product Safety Commission (CPSC) is a year late in publishing a mandated study examining use of certain phthalates in children’s toys. Most recently, in late March, the CPSC deflected requests by industry groups and two Republican congressmen, Reps. Mike Pompeo of Kansas, and Adam Kinzinger of Illinois, who urge that the committee's report be subject to a public scientific peer review process before it is published for comment. Industry argues that such a review is necessary for transparency, while environmental and consumer advocates consider this request a stalling technique, noting that the report will be open for public comment once it's published in the Federal Register. Clarification added: the report itself will not be published for comment in the Federal Register, but rather any regulatory proposals the commission makes based on the report. The committee creating the report also held public meetings during its deliberations; the CPSC has posted information here.
Now the ACC has elevated its argument to the OMB, arguing that CPSC's decisions are contrary with OMB policies on "rigorous scientific review." "The regulation of these important chemistries has great marketplace implications in the building and construction and transportation sectors of our economy," an ACC spokesperson told Sunlight in an emailed statement. "With this current approach, the CPSC's proposal will not benefit from any public input before the Commission begins drafting a proposed rule and there will be no opportunity for public engagement until the rulemaking begins."
In an emailed statment, Kinzinger said "The regulations on phthalates being considered by the Consumer Product Safety Commission could impact nearly 40,000 jobs, yet the panel in charge of reporting to the commission has closed-off its analysis to the public." Kinzinger has received more than $62,000 in campaign contributions from chemical industry donations over the years, including contributions from PACs associated with ACC and BASF, according to Influence Explorer.
However, Kinzinger and Pompeo have not always chosen to back more transparency from the CPSC. In 2011, Pompeo championed an amendment to defund a controversial new consumer complaints database mandated by Congress after a public uproar following the recall of millions of lead-contaiminated popular toys imported from China. Kinzinger also voted "yes" on this amendment.
(Photo credit: U.S. Energy Department via Flickr)