Introduction

For anyone anxious about toxic chemicals in the environment, Sunday marked a dubious milestone.

It has been three years since the “chemicals of concern” list landed at the White House Office of Management and Budget. The list, which the Environmental Protection Agency wants to put out for public comment, includes bisphenol A, a chemical used in polycarbonate plastic water bottles and other products; eight phthalates, which are used in flexible plastics; and certain flame-retardant compounds called polybrominated diphenyl ethers, or PBDEs.

The EPA wants to highlight these chemicals because “they may present an unreasonable risk to human health and/or the environment,” the agency says.

But any such listing must first be vetted by the OMB’s Office of Information and Regulatory Affairs, OIRA.

The EPA proposal arrived at OIRA on May 12, 2010. There it remains — a symbol, some say, of a broken regulatory system.

“It’s far past time for the OMB to conclude its review of the EPA’s proposal to list chemicals of concern,” Sen. Frank Lautenberg, D-N.J., said in a statement to the Center for Public Integrity. “Americans deserve access to information about the chemicals found in products throughout their homes that might pose a risk to their health.”

In a statement, OMB spokeswoman Ari Isaacman Astles wrote, “The Administration is committed to chemical safety and when it comes to complex safety rules, it is critical that we get them right.”

An EPA spokeswoman said only that the agency’s list, which has been challenged by companies such as ExxonMobil and Dow Chemical, “remains in interagency review.”

By executive order, OIRA is supposed to review proposed rules within 90 days of receiving them, with the possibility of a single, 30-day extension. That’s four months, maximum.

Why has the chemicals of concern list been at OIRA for three years? No one is saying.

Yet in a draft of an upcoming law review article, former EPA official Lisa Heinzerling, a law professor at Georgetown University, offers some clues.

Heinzerling lays some blame on recently departed OIRA director Cass Sunstein, now teaching at Harvard Law School. In his new book, “Simpler: The Future of Government,” Sunstein makes clear “how much power he wielded” at OIRA — with the authority to make sure that some rules ” ‘never saw the light of day, ’ ” Heinzerling writes.

Sunstein did not respond to an invitation to comment. President Obama has nominated Howard Shelanski, director of the Federal Trade Commission’s Bureau of Economics and a former law clerk for U.S. Supreme Court Justice Antonin Scalia, to replace him at OIRA.

Problems at the office have become entrenched, Heinzerling argues.

“Many outside observers believe that there is in fact a deadline for OIRA review,” she writes. “Not only is there no deadline for OIRA review, but OIRA itself controls the agency’s ‘requests’ for extensions. In this way, it comes to pass that rules can remain at OIRA for years.”

EPA rules seem to draw extra scrutiny. “EPA receives more sustained attention from OIRA than any other federal agency,” Heinzerling writes. Fifteen of the 22 EPA rules under review have been at OIRA for more than a year.

What’s so threatening about the chemicals of concern list?

The American Chemistry Council, a trade group, did not respond to requests for comment.

In a statement to the Center last year, however, the group said, “We are concerned that EPA is creating a list of ‘chemicals of concern’ for potential regulatory action, without establishing consistent, transparent criteria by which these chemicals are selected. … It is OMB’s job to closely review the proposed action and consider any negative economic impact; we appreciate that officials are taking the time they need to fully study the matter.

“Failure to fully review such agency proposals undermines public and private sector confidence in the regulatory process and can seriously harm American innovation and jobs.”

Richard Denison, a senior scientist at the Environmental Defense Fund, said publication of the list would not restrict commerce and is within the EPA’s authority.

“OIRA has deprived the public of the right to even comment by refusing to allow EPA to issue the proposed rule,” Denison said. “The debate is being squelched by an office that doesn’t have any real scientific expertise and certainly shouldn’t have the ability to override the authority that Congress gave EPA.”