New legislation that makes us safer – maybe.

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While asbestos is illegal in more than 50 countries, the United States is not among them. The EPA tried to make asbestos containing products illegal in 1989, and succeeded temporarily. But the ruling was overturned in 1991 after the court found the EPA hadn’t considered the cost to industry of an asbestos ban, and therefore the agency hadn’t met its obligations user TSCA, even though the chemical is a known carcinogen[1].

The Toxic Substance Control Act of 1976 (TSCA) gave the EPA, only six years old itself at the time, the authority to regulate the safety of industrial chemicals in order to protect the environment and human health. However, because of a combination of limitations in the statute and a series of events over the past 40 years (reductions in the EPA’s budget, limited oversight by Congress, and successful challenges by the chemical industry to limit the EPA’s authority), the TSCA is widely recognized as ineffective and out of date. It had no teeth:

We assumed the TSCA was testing and regulating chemicals used in the industry[2]. It was not:

• Of the more than 60,000 chemicals  in use prior to 1976, most were “grandfathered in”; only 263 were tested for safety and only 5 were restricted.  Today over 80,000 chemicals are routinely used in industry, and the number which have been tested for safety has not materially changed since 1976.  So we cannot know the risks of exposing ourselves to certain chemicals.  The default position is that no information about a chemical = no action.
• The chemical spill which occurred in West Virginia in 2014 was of “crude MCHM”, or 4-methylcyclohexanemethanol, one of the chemicals that was grandfathered into the Toxic Substances Control Act of 1976.   That means that nobody knows for sure what that chemical can do to us.
  • Carcinogenic effects? No information available.
  • Mutagenic effects? No information available.
  • Developmental toxicity? No information available.

Lack of information is the reason the local and federal authorities were so unsure of how to advise the local population about their drinking  water supplies.  (And by the way, in January 2014, a federal lawsuit was filed in Charleston, WV, which claims that the manufacturer of MCHM hid “highly toxic and carcinogenic properties” of components of MCHM, hexane and methanol, both of which have been tested and found to cause diseases such as cancer).

We assumed that the TSCA required manufacturers to demonstrate that their chemicals are safe before they go into use. It did not:

• The TSCA says the government has to prove actual harm caused by the chemical in question before any controls can be put in place.  The catch-22 is that chemical companies don’t have to develop toxicity data or submit it to the EPA for an existing product unless the agency finds out that it will pose a risk to humans or the environment – which is difficult to do if there is no data in the first place.  Lack of evidence of harm is taken as evidence of no harm.
  • The EPA required a “Premanufacture Notification” of a new chemical, and no data of any kind was required [3].   The EPA receives between 40-50 each week and 8 out of 10 are approved, with or without test data, with no restrictions on their proposed use. As 3M puts it on their PMN forms posted on EPA’s web site, “You are not required to submit the listed test data if you do not have it.”
• We assumed that manufacturers must list all ingredients in a product, so if we have
• an allergy or reaction to certain chemicals we can check to see if the product is free of
• those chemicals. They do not:
  • The TSCA allows chemical manufacturers to keep ingredients in some products secret.   Nearly 20%, or 16,000 of the more than 80,000 chemicals in use today are considered “trade secrets”.  This makes it impossible for consumers to find out what’s actually in a product.  And there is no time limit on the period in which a chemical can be considered a trade secret.

The new “Frank R. Lautenberg Chemical Safety for the 21^st Century Act” (H.R. 2576 – which I’ll call the LCSA because it’s such a mouthful!) was passed by the Senate on June 7, 2016 and sent to the White House for President Obama’s signature. This is a slight improvement over the old TSCA, but not everybody is happy with the reform.  Consumers interested in making safer choices will still need to rely on third party assessments as the bill still does little to protect consumers. The bill was passed without the support of most environmental and public health groups, many of which released a letter opposing the proposal.

The bill “continues to have serious flaws that undermine protection of public health,” said the letter, “and we continue to be ready to work with senators to get those changes.” The letter was signed by representatives of Safer Chemicals, Healthy Families; the Natural Resources Defense Council; the United Steelworkers and the League of Conservation Voters. The Breast Cancer Fund, Center for Environmental Health and the Environmental Working Group all said the bill falls far short of what’s needed to protect the public from hazardous chemicals. Here’s what the Environmental Working Group’s President Ken Cook said:

Passage of the first legislation to regulate toxic industrial chemicals in 40 years ought to be cause for celebration, and it is—for the companies that make those toxic chemicals. As for the rest of us, we should be mad as hell.

 Despite the best efforts of many lawmakers to redeem legislation that originated in the c-suites of the chemical industry, on balance the law Congress will send to the president’s desk continues to place chemical company interests above the public interest.

 The public deserves a law strong enough to curb the abuses of an industry that clearly cannot be trusted. The toxic products of America’s chemical companies show up by the hundreds in the bodies of the American people, including babies still in the womb. Thousands of cities, school systems and water utilities nationwide are forced to clean up, or live with, water, air and toxic buildings rendered unsafe by the chemical industry’s hazardous products.

This is an industry that routinely poisons its own workers and the very communities in which it operates, and just as routinely lies about it.

 EWG fears this law will do too little to protect us from chemicals that cause cancer and nervous system disorders, impaired fertility, immune system dysfunction and a host of other problems.

Chemical companies have long ago lost the confidence of the American people, and this law will only fuel that mistrust. Because this law will not strongly and urgently address the problem of toxic chemical exposure, increasingly consumers will act to protect themselves. They will continue to reject products that contain unsafe chemicals; and manufacturers and retailers that listen to consumers will reformulate or reject those products.

 Indeed, more unsafe chemicals may be “regulated by retail” in the years ahead, and regulated faster and more stringently, than will be regulated by this legislation. Instead of raising confidence about the safety of chemicals and the products that contain them, this law will raise doubts—an outcome no one should be celebrating.

 “It’s a very ambitious undertaking — it’s going to be hard,” said James Aidala, the former head of EPA’s chemical safety office and a consultant at Bergeson & Campbell. “It is going to take a long time, even if the administration gives the program a slug of money on day one.”[4]

The new act contains many loopholes, the most controversial of which prevents individual states from creating restrictions on a chemical if the EPA has decided to conduct a risk evaluation of that chemical.  This is called “preemption” – and once the EPA makes a final ruling on a chemical, the preemption becomes permanent.  So if the EPA decides to limit a chemical, a state will no longer be able to raise the bar with an outright ban or any other more stringent restriction.

This is a big deal. Due to political gridlock in Washington and the achingly slow pace of EPA reviews, many states have already taken the lead in protecting their communities from toxic chemicals. And by and large, they’ve done a pretty good job. For example, Maine successfully implemented strict safety standards on PBDEs, flame retardants which are linked to developmental issues in children, and on BPA, a potential carcinogen. These state-level reforms prompted national changes, leading major toymaker Hasbro to voluntarily remove BPA from all of its products.  Any state with a prohibition or restriction of a chemical enacted before April 22, 2016 will not be preempted – so California’s Proposition 65 and Massachusetts’ Toxics Use Reduction Act will be preserved.

Advocates of the act argue that states aren’t permanently banned from acting on these chemicals, but merely prevented from taking action while the EPA conducts its reviews. However, these reviews can take an enormous amount of time — we’re talking decades. As The Intercept’s Sharon Lerner has pointed out, “The EPA has been investigating the safety of some of the flame retardants that would be banned by the Washington state bill for more than 25 years. And the agency has spent at least 30 years looking at the safety of methylene chloride, which is still widely available in hardware stores though its fumes have been killing people since at least the 1940s.”

Another loophole would make it much harder for the EPA to prevent foreign products containing dangerous chemicals from being imported into the United States, making it even easier for toxic toys, furniture, and other consumer products to show up in American stores and homes.

Yet another loophole would push the EPA to designate many chemicals as “low priority,” without a full evaluation.

And, perhaps most troublingly, neither the Senate nor House version of the bill requires companies to prove new chemicals are safe before bringing them to market. The wording in the bill reads that a company must prove “no unreasonable risk of harm” which is weaker than the standard set for chemicals in other settings, which is they must prove “reasonable certainty of no harm”

What the Frank Lautenberg Chemical Safety Act for the 21^st Century will do for the EPA:

• Allows the EPA to review all chemicals currently used in commerce  and designated low- or high-priority – but at a slow pace: the EPA is only required to have 50 chemicals designated by 2021, so it theoretically could take centuries.
• It explicitly requires protection of vulnerable populations like children and pregnant women, who are at elevated risk.
• Allows the EPA to reassess confidential business information claims (CBI), which were widely used to withhold critical information from the EPA under TSCA. Under the LCSA, the EPA can share information with state and local governments, first responders, health providers and researchers as long as confidentiality is maintained. The current bill mandates that CBI claims must be substantiated as to why certain substances are confidential business information and must be renewed every 10 years.
• Allows the EPA to require additional testing of chemicals by industry without going through the lengthy rule-making process that was required under TSCA.

Remaining issues to be resolved:

• This regulation still does not give consumers a right to know what is in their products. Product and chemical transparency remain one of the biggest barriers to action and this bill does not make things any better.
• Chemical review will be extremely slow. EPA will likely only review 10-20 chemicals per year despite the fact that there are tens of thousands of registered chemicals, including at least 1000 which the EPA considers a high priority; 700 new chemicals are introduced every year.

Areas where the effect of the Bill is still unclear:

• Implementing a health standard rather than a cost-benefit standard for the assessment and regulation of chemicals. It appears that the EPA will only need to demonstrate health risks in order to prioritize chemicals, but that they may still need to pass the cost-benefit test in order to regulate a given chemical. Once a chemical is determined to be unsafe in a specific use or product, the EPA is mandated to eliminate that risk. However, before EPA can issue any rule restricting the uses of a harmful chemical, it must conduct a cost-benefit analysis that goes beyond the traditional type – an analysis that could slow the elimination of toxic chemicals from the market considerably and ultimately place economic concerns above health.
• It is not clear if the EPA will have the resources needed to meet the mandates of the new bill. Implementation of the proposed law will be a herculean task for an agency with scarce resources, former officials and lawyers say. By the time EPA finishes work on the chemicals it has prioritized, the children of today’s children will have been exposed to them — probably for years.[5]
• It is not clear how the review process for chemical prioritization works and how much influence companies will be able to exert over it.
• States’ ability to regulate chemicals of concern will be superseded by the federal regulation on a chemical by chemical basis. With the exception of California’s Proposition 65 and the Massachusetts Toxic Use Reduction Act which will both be unaffected by the new law, the federal ruling on a given chemical will take precedence.
• These limitations all help to perpetuate the chemical industry’s failure to innovate toward safer chemical and product design.  It’s one of the reasons the USA is one of the few nations in the world in which asbestos has not been banned in many products.

How did all these loopholes make it into the Senate’s final bill? Easy: the chemical industry spent tons of money to influence the legislation. Since 2014, while Congress was hashing out TSCA reform, the top 10 chemical companies and organizations spent more than $125 million on lobbying.[6] No wonder, then, that the pending updates to the TSCA have the blessing of more than 100 interest groups, from the American Chemistry Council and the American Petroleum Institute to the Chamber of Commerce.

All of which helps explain why the chemical industry loves the legislation meant to regulate it. The American Chemistry Council, which supports both the House and Senate bills, represents more than 100 chemical companies, several of which stand to have their products spared from pending regulation, including the Occidental Chemical Corporation, manufacturer of methylene chloride, which California is in the process of restricting: Chemtura, which makes a flame retardant that would be banned by a bill pending in Washington state; and Eastman Chemical Company, which makes the plastics additive DEHP, which is under regulatory scrutiny in Maine.

The chemical industry has a direct financial stake in seeing this bill passed. If the Senate bill becomes law, individual states may be forced to abandon their safety efforts, allowing ACC members to continue producing and selling their chemicals without restraint. Just last year, California Democratic Senator Barbara Boxer complained that one draft of the bill had been traced directly to an American Chemistry Council computer.[7]

 “As usual, industries willing to spend big on political contributions and lobbying get to write their own rules, even if it means hamstringing local governments and putting regular people in danger. It’s also a prime example of why anti-corruption reform is bringing together unlikely alliances of conservatives and progressives: when big money merges with big government, nobody wins.”[8]

[1] Hamblin, James, “Toxic Substances will now be somewhat regulated”, The Atlantic, May 26, 2016

[2] http://www.chemicalindustryarchives.org/factfiction/testing.asp

[3] http://www.chemicalindustryarchives.org/factfiction/testing.asp

[4] Traywick, Catherine and Kaskey, Jack; “EPA wins clout to fight toxic chemicals, but it may take a while”, June 8, 2016, http://www.bloomberg.com/politics/articles/2016-06-08/with-chemical-safety-law-congress-hands-epa-herculean-task

[5] Traywick, Catherine and Kaskey, Jack, op cit.

[6] Lerner, Sharon, “”Toxic “reform” law will gut state rules on dangerous chemicals”, The Intercept, January 11, 2016. https://theintercept.com/2016/01/11/toxic-reform-law-would-gut-state-rules-on-dangerous-chemicals/

[7] Dubose, Lou, “The American Chemistry Council’s Trojan Horse”, The Washington Spectator, June 1, 2015.

[8] Represent.us, “The Chemical Lobby Writes Its Own Law”, https://represent.us/action/chemical-lobby/