Bergeson & Campbell, P.C.

2010 predictions

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Courtesy of Bergeson & Campbell, P.C.

Our thoughts are below on what may be headed our way in 2010 from the U.S. Environmental Protection Agency's (EPA) Office of Prevention, Pesticides, and Toxic Substances (OPPTS). In short, the momentum and positions that the Obama Administration took in 2009 are likely to become greater and more solidified in 2010 as a number of key issues are addressed. EPA as a whole continues to exhibit a desire to be the 'un-Bush.' That is, decisions or policies that originated with Bush Administration appointees appear to be regarded as presumptively inadequate. Administrator Jackson's repeated statements that 'the cop is back on the beat' are one indication of this bias. The Office of Pollution Prevention and Toxics' (OPPT) statement last September to take a fresh look at EPA's policy on how nanomaterials should be treated under the Toxic Substances Control Act (TSCA) and the 'superseding' of the Chemical Assessment and Management Program (ChAMP) are other examples. The Office of Pesticide Programs' (OPP) review of atrazine is yet another. Another clear indication of this is in the air area, namely Administrator Jackson's signing of the two endangerment findings under the Clean Air Act on December 7, 2009, though this initiative is not discussed further given the focus of this memo on toxics issues.

The desire to be 'un-Bush' may be relevant for some programs, but it has led to actions in OPPTS that some believe are without scientific basis or need, such as the atrazine review, since OPPTS was not significantly partisan over the past eight years. Some may dispute that characterization, but the repeated rhetoric about the past 'do-nothing' Bush era may take a significant toll in a number of areas within OPPTS. For example, morale of the career staff, who have been responsible for many decisions and activities during the Bush period, can be expected to suffer. Similarly, chemical and agrochemical manufacturers can be expected to resist the characterization that the past eight years reflect some sort of 'do nothing' mentality, particularly in light of the completion of pesticide reregistration and tolerance review as required by the Food Quality Protection Act (FQPA), an initiative of the Clinton Administration.

Administrator Priorities
Administrator Jackson has often emphasized her priorities, which include chemical reform, environmental justice, and transparency, in speeches and writings since her confirmation last January. We can expect OPPTS initiatives in 2010 to promote these priorities in significant ways.

Administrator Jackson's issuance on December 30, 2009, of new regulatory risk management chemical action plans on certain chemical substances is a reflection of the Administration's commitment to overall domestic chemical management. Our December 31, 2009, memorandum, available online, reviews the action plans in some detail and offers a number of observations regarding the significance of the action plans and their role within the ongoing and broader chemical policy debate. What process is followed in refining the action plans in response to public comment and how these plans are implemented will be a test of Administrator Jackson's commitment to transparency.

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