The U.S. Senate recently confirmed the appointment of Alexandra Dunn as Assistant Administrator for Office of Chemical Safety and Pollution Prevention (“OCSPP”) at the U.S. Environmental Protection Agency (“EPA”). Ms. Dunn had most recently been a Trump appointee as EPA Regional Administrator for Region 1, based in Boston.
During Ms. Dunn’s confirmation process Senator Thomas Carper of Delaware raised issues related to the Agency’s regulation of chemicals, including the approach to the use of science in regulation. Most of the emphasis was on the Toxic Substances Control Act (“TSCA”) and the implementation of the related Frank Lautenberg Chemical Safety Act for the 21st Century. However, several significant pesticide policy issues were also raised, including use of science in reviews of pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), as well as regulatory issues related to worker protection and applicator certification. The Agency set forth its position on these issues in a letter from Acting Administrator Wheeler to Senator Carper.
On the science front, at issue was the science policy regulation proposed by OCSPP last April. See 83 Federal Register 18768 (April 30, 2018). The proposal, entitled “Strengthening Transparency in Regulatory Science” The stated overall aim of the proposal was to “ensure that the data and models underlying scientific studies that are pivotal to regulatory action are available to the public.” This change was proposed notwithstanding the fact that multiple Courts have found EPA’s existing practices in relying science to be legally acceptable. See American Trucking Associations v EPA, 283 F.3d 355 (2002.)
In fact the proposal raised significant alarm in the scientific community. Concern was expressed that rather than promoting sound science, the proposal would undermine EPA’s reliance on science because it would rule out otherwise valid studies whose underlying data was confidential. See for example a letter from the editors of four major journals, who objected to the proposed policy and EPA’s assertion that the policy was in line with the policies of the journals in question. http://science.sciencemag.org/content/360/6388/eaau0116 Acting Administrator Wheeler has now committed to having the proposed policy reviewed by the National Academy of Science. Although the outcome of such a process will be somewhat influenced by the charge which is given to the NAS in referring the issue, many critics are likely pleased by this outcome.
In the same exchange policy changes were also announced with respect to pesticide Worker Protection Standards and applicator certification rules. EPA had spent several years developing a new certified applicator rule, which was promulgated on January 4, 2017. See 82 Fed. Reg. 952.
The most controversial aspect of the rule changes was the imposition of a nationwide requirement that person applying restricted use pesticide must be at least 18 years of age. Notwithstanding an exemption for family members under 18 applying pesticides under the supervision of a family member, agricultural interests still pushed back on the age restriction. As a result EPA had proposed extending the effective date of the rule and reconsidering the age restriction. See 82 Fed. Reg.60196 (December 19, 2017). Mr. Wheeler has now announced that EPA will withdraw its proposed revisions from the Office of Management and Budget, and will not lower the age restriction nor designated representative provisions, another controversial aspect of the worker protection rule. Wheeler did state that there may reconsideration of the application exclusion zone (AEZ”) aspect of the worker protection rule, but if so would do so through a public notice and comment process.