Unsportsmen-like Conduct: Senate Sportsmen bill weakens protection from toxic chemicals

This is a slightly revised version of yesterday’s post. 

When the Senate returns from its recess next week, it will likely vote on legislation that would weaken existing protections from exposure to toxic chemicals.  Senator Kay Hagan is this year’s lead sponsor and champion of the “Sportsmen’s Bill,” which contains a grab bag of provisions that are desired by, or beneficial to hunters and anglers and in some cases are also supported by the environmental community.  However, one of the provisions in the bill is not like the others. 

Section 102 of the bill would weaken the environmental law intended to protect the public from exposure to unsafe chemicals – the Toxic Substances Control Act (TSCA). The provision won’t actually benefit sportsmen or anyone else. Instead it could reduce the EPA’s ability to identify, assess, and prevent public exposure to a large number of toxic chemicals used in numerous types of munitions -- including those which we already know pose widespread problems, such as lead and perchlorate. The major proponent of the provision for years has been the National Rifle Association, which, according to Hill staffers, has in the past threatened to sink the rest of the relatively non-controversial bill if the TSCA rollback provision is removed.  Regardless of which groups are talking to Senator Hagan, unless the TSCA provision is removed, the Senate should not enact this bill.

TSCA is the law that gives EPA the authority to regulate most industrial chemicals over their entire life-cycle, including manufacturing, processing, distribution, use and disposal.  However the law excludes several uses of chemicals from its jurisdiction, including in pesticides and uses regulated by the FDA --such as pharmaceuticals, cosmetics and food additives -- because those are regulated under other federal laws.  The law also currently exempts pistols, revolvers, other firearms, shells and cartridges from TSCA’s jurisdiction. 

The exact scope of that firearms exemption is controversial and the reason for the provision in the bill before the Senate.  The key question is whether the exemption in current law extends to ammunition, and the separate chemical components of both firearms and ammunition, or simply to the weapons themselves. The language in the Sportsmen’s bill explicitly exempts ammunition, and the separate chemical components of firearms and ammunition from TSCA’s health protections.  Specifically, the new language adds to the exemption “any component of any such article including, without limitation, shot, bullets and other projectiles, propellants, and primers.” [emphasis added]  The Sportsmen’s bill provision would also add an entirely new exemption for any chemical used in “any sports fishing equipment…and sport fishing equipment components.” (for purposes of the provision sports fishing equipment is defined by reference to section 1462 of the IRS Code paragraphs 1-5). That language is either a dramatic expansion of the exemption (our view) or a simple clarification, depending on how you read the current statute.

Regardless of whether the provision is an expansion or a clarification of existing law, the end result is that EPA would be prevented from protecting the public from known hazards. Among the important TSCA authorities at stake are EPA’s ability to review the safety of new chemicals intended to be used for these purposes (and potentially imposing restrictions on the use of those new chemicals  -- such as worker protection measures or limits on discharge to the environment); the ability to require manufacturers of chemicals for these uses to test the chemicals for their potential harm to health and the environment, to require disclosure of health studies which raise concerns about the safety of a chemical when used for these purposes, and to regulate both the use and disposal of these chemicals.  Such a limitation would also limit EPA’s ability to gather additional information related to both the hazard and exposure of these chemicals, including for example, assessing the risk of human exposure to these chemicals from any of the uses to be exempted.

The ostensible “need” for this legislation is to prevent EPA from banning the use of lead in bullets and fishing tackle. Its genesis is a 2010 petition filed by the Center for Biological Diversity and other groups calling on EPA to ban the use of lead in bullets and fishing sinkers using its authority under TSCA.  EPA denied the petition regarding lead in bullets on the grounds that it did not have jurisdiction under TSCA to regulate lead in bullets because of the firearms exemption.  EPA separately denied the petition on lead fishing sinkers saying that CBD et al. had not made a sufficient case why a national ban was needed or was the “least burdensome adequately protective approach” to the problem. CBD filed a legal challenge to the petition denial in federal court, but it was ultimately dismissed for having been filed too late, without the court reaching the substantive questions.  A second petition filed with a host of new groups and a more general claim for relief (asking EPA to undertake a rulemaking under Section 6 of TSCA without specifying a ban) was rejected by EPA as being essentially the same as the first petition.  CBD and others challenged EPA’s rejection of the second petition and EPA’s action was upheld in federal court.  Thus, there is not even the possibility of EPA acting under TSCA to regulate lead in bullets or fishing sinkers anytime soon, and probably ever. 

While the petitions, rejections, and court challenges were playing out, legislative provisions similar or identical to the Hagan provision in the Sportsmen’s bill were being introduced repeatedly in the House and Senate, including in various version of Sportsmen bills and House versions of the National Defense Authorization Act (NDAA), or amendments to the Senate NDAA.  The eventual demise of the CBD-led petition effort has not reduced the appetite of supporters of the TSCA provision – principally the NRA:  Enacting it is still apparently the political price to be paid for moving broader Sportsmen’s legislation through the Senate and the Congress.

It’s impossible to know whether EPA’s action on ammunition would have been upheld in court. The legislative history of the exclusion is scant, but at least one statement from the House at the time TSCA was enacted seems to support CBD’s argument for a narrow reading of the provision. The 1976 House report states:

Although the language of the bill is clear on its face as to the exemption for pistols, revolvers, firearms, shells, and cartridges, the Committee wishes to emphasize that it does not intend that the legislation be used as a vehicle for gun control. Consequently the Administrator has no authority to regulate ammunition as an unreasonable risk because it injures people when fired from a gun. However, the Committee does not exclude from regulation under the bill chemical components of ammunition which could be hazardous because of their chemical properties.

Whatever Congress’ intent 40 years ago, Congress now is about to take action without any investigation of its potential impacts Before Congress acts to either curb EPA’s authority under TSCA to regulate the use of chemicals in munitions – or “clarify” its current lack of authority – it needs to more thoroughly consider the scope of pollution from chemicals used for these purposes, and their potential for widespread exposure and harm to human health and wildlife.  The issue is not simply whether wildlife is harmed by the use of lead in bullets by hunters or in fishing sinkers (although CBD and others make a strong case for that in their petitions to EPA).  The use of lead in ammunition is more widespread, and human exposure may be extensive.  In addition, other toxic chemicals of concern are used in munitions in ways that have already led to widespread human exposure and will likely pose health and environmental concern for years to come.  Unfortunately, not a single hearing has been held in either the House or Senate on this issue in the nearly four years since it first arose.   And over that same period more evidence has emerged regarding widespread exposure to lead from ammunition and its threat to human health.  If anything, Congress should be acting to clarify that TSCA does give EPA the authority to address the use of chemicals in ammunition and its components.  These issues are discussed in a bit more detail below.

  1. Lead continues to pose a major health risk to human health as well as to wildlife, and exposure is widespread.  The August 2010 petition by CBD and the other groups calling for EPA to ban the use of lead in shot, bullets and fishing sinkers compiled an extensive record of the potential harm to human and wildlife by these uses of lead.  The level of lead exposure deemed to be “safe” – both for human health and the environment -- continues to fall which is why many other uses of lead have been reduced or phased out. The reduction in human exposure to lead – as exemplified by the phase out of lead in gasoline and in paint -- may have other major societal benefits, including reducing violent crime, in addition to protecting the health of millions of individuals including children.  

The health threat posed by lead exposure is not simply to individual hunters. There are thousands of shooting ranges, including private ranges and those run by the military where exposure to lead may be widespread.  NIOSH estimates that there are 16,000 to 18,000 indoor shooting ranges in the United States used by more than a million federal, state and local law enforcement officers and 20 million active target shooters. The Interstate Technology & Regulatory Council’s Small Arms Firing Range Team issued a report in 2005 “Environmental Management at Operating Outdoor Small Arms Firing Ranges” that addressed the threat at outdoor firing ranges of lead, -- a primary constituent of most projectiles and primers. The Council’s report cites an EPA estimate of 9,000 outdoor nonmilitary small arms firing ranges and more than 3,000 small arms ranges operated by DOD.  Exposure to lead at these firing ranges poses real health risks, both to people using the shooting ranges and particularly people who work at them. The National Academy of Sciences issued a report in 2012 concluding:

There is overwhelming evidence that the OSHA standard provides inadequate protection for DOD firing-range personnel and for any other work populations covered by the general industry standard…The committee found sufficient evidence to infer causal relationships between [blood lead levels under 40 micrograms per deciliter] and adverse neurologic, hematopoietic, renal, reproductive, and cardiovascular effects.  The committee also found compelling evidence of developmental effects in offspring exposed to lead in utero and during breastfeeding, and this raises additional concerns about exposures of women of childbearing age.  

And exposure to lead from DOD shooting ranges and other military sites (or former military sites) is not limited to on-site exposure.  Take for example the elementary school at Tyndall Air Force base, formerly used as a shooting range, where the playground at the school was littered with lead shot and bullet fragments.  Cleanup of this site has been a source of ongoing dispute between EPA and DOD, with EPA’s restricted authority under Superfund limiting the agency’s ability to ensure a timely and health protective clean-up.  In short, exposure to lead from its use in bullets and a component of munitions is an extensive, serious and ongoing problem.  Removing EPA’s authority under TSCA to address any aspect of that problem, including assessing the safety of potential lead substitutes, will only make the problem worse.  Given that there is no immediate, medium-term or even long-term threat of EPA actually attempting to ban the use of lead in bullets, Congress should reject the NRA’s demand to cut off any EPA authority to address any aspect of the health or environmental threats posed by lead in munitions.

        2.   Many other toxic chemicals of concern are used in munitions with the potential for widespread exposure and harm to human health.  Although the discussion of the TSCA provision in the Sportsmen bill and why it is “necessary” is almost entirely about lead in bullets and fishing equipment (to the extent that there is any discussion), it is important to understand that the provision is clearly not limited solely to lead.  The provision applies to any chemical – whether already existing or new – that might be used as a component of firearms or ammunition or in fishing equipment. Nor is the provision narrowly targeted to limited or particular uses of lead or other chemicals. Instead, it is extremely broad, “without limitation” including “any use” of a chemical as a component of a primer, propellant or projectile, including all military uses of these substances.  So we’re now talking about hundreds of chemicals, some of which are already sources of concern for pollution and health effects at thousands of military sites, and former military sites across the country. Pollution from these uses of toxic chemicals in munitions poses a multi-billion dollar cleanup challenge for the federal government, which DOD, EPA and other agencies have been (and will be) grappling with for decades. The implications of that broad scope of exemption should be extremely worrying to all lawmakers.

There are a number of toxic chemicals either previously or currently widely used by the military as components of propellants, primers, or projectiles which raise serious health concerns and for which exposure is already sufficiently widespread that DOD and EPA are seeking – not always in agreement -- to grapple with handling the problems created by public exposure and the need for cleanup.  GAO reported in 2003 on more than 200 chemical munitions constituents that may be contaminating current or former military sites (including polluting soil, groundwater and surface water) and identified 20 chemicals “that are of greatest concern due to their widespread use and potential environmental impact” including Dinitrotoluene (DNT), Royal Dutch Explosive (RDX), TNT, HMX, white phosphorous and perchlorate.

Senators and their staff should also review this 2010 GAO report on the Military Munitions Response Program, one of a series of GAO reports addressing the ongoing issue of contamination from munitions at a range of DOD sites.  The report identifies several sources of contamination problems including unexploded ordinance, discarded military munitions and “munitions constituents such as propellants or other chemicals.” According to GAO, as of fiscal year 2008, DOD had identified 3,674 munitions response sites that are potentially contaminated with unexploded ordinance, discarded munitions, or munitions constituents (or some combination).  For what its’ worth, according to the state-by-state breakdown in the report, DOD had identified 85 sites in North Carolina – the 10th most of any state, though far behind several other states with numbers in the hundreds.

The 2003 GAO report on military munitions, “DOD Needs to Develop a Comprehensive Approach for Cleaning Up Contaminated Sites” stated: “Much of the land on which these sites are located has been or will be converted to nonmilitary uses such as farming, residential or commercial development, and recreation.  The Department of Defense (DOD) estimates that identifying, assessing, and cleaning up contamination from military munitions at such sites will cost from $8 billion to $35 billion and could take more than 75 years.” GAO further notes:

[H]uman exposure to munitions constituents such as trinitrotoulene (TNT) and perchlorate may cause long-term health problems such as cancer and damage to the heart, liver, and kidneys.  However, the link between such constituents and any potential health effects is not always clear and continues to be studied.  Military munitions may also pose an environmental risk because their use and disposal may release constituents that could contaminate soil, groundwater and surface water. Former ranges on which munitions-related activities were conducted and which are known or suspected to contain military munitions are in a variety of locations, including near ecologically sensitive wetlands, surface waters, and floodplains.  While many constituents have been an environmental concern to DOD for more than 20 years, the current understanding of the causes, distribution, and potential impact of constituent releases into the environment remains limited.  The nature of these impacts, and whether they pose an unacceptable risk to human health and the environment, depend upon the dose, duration, and pathway of exposure, as well as the sensitivity of the exposed populations.  Until recently, DOD has focused primarily on mitigating the public safety risk associated with unexploded ordinance, but it is now giving additional attention to environmental and health concerns posed by munitions constituents.

A theme running through more than a decade of GAO reports on contamination from munitions at current and former DOD sites is the very slow pace of identifying sites that are a priority for cleanup, for conducting site assessments (a preliminary step before taking actual cleanup measures), and the lack of transparency in how the various armed services go about implementing their munitions cleanup programs. Those problems, described in the aggregate by GAO are manifested in specific disputes with EPA over efforts to get specific sites cleaned up, and to protect the public from imminent harm, such as at Tyndall Air Force Base, where EPA has been unable to compel the Air Force to adopt a Federal Facility Agreement under Superfund, and at Camp Minden a former munitions manufacturing site in Louisiana where, according to EPA, roughly 15 million pounds of propellant (comprised of a mixture of chemicals including nitro cellulose, DNT and dibutyl phthalate) from 1,350,000 excess or obsolete M6 artillery charges, was improperly and illegally stored, creating an imminent and substantial risk of the propellants self-igniting.   EPA has issued a Unilateral Administrative Order under RCRA, holding DOD responsible for the cleanup and safe disposal of the propellant, but the DOD has pushed back against the EPA order on a number of grounds.

Without weighing in on all the factual and legal questions in these two cases, they are both examples where EPA’s existing authority to address situations that pose risk of harm to human health under other statutes has been limited and ineffective.  TSCA contains some alternative authorities that EPA could at least theoretically use (or attempt to use) to address the imminent threats to safety at these and other sites contaminated by chemical munitions.  It is a legitimate debate to have whether EPA should use that authority, in what instances, its limitations etc.  It would be an enormous mistake however for Congress to blithely eliminate any potential authority EPA now has, particularly considering the scope and seriousness of the problem -– and both the scope and seriousness may be  even greater than we currently understand them to be.

In addition to the authority TSCA provides EPA as far as taking action to address imminent hazards, and unreasonable risks to human health and the environment, there are other actions EPA can and does take under TSCA, even if those actions are limited and constrained by the weakness of current law.  An important function EPA at least partially fulfills under TSCA is a review of the safety of new chemicals before they can enter the marketplace.  Generally speaking, a manufacturer of a new chemical must provide EPA with a notice at least 90 days before it begins to manufacture the new chemical, providing EPA an opportunity to do at least some amount of assessment of the chemical, and, although the process is cumbersome and limited, EPA can compel manufacturers to provide additional information about the substance if needed and impose some restrictions on its use if necessary. For example, EPA screens new chemicals to determine if they are likely to be persistent, bioaccumulative and toxic (PBT), a clear flag of concern. Other questions EPA would likely consider are whether a new chemical will be produced in large quantities, will it have a widely dispersive use, is it water soluble and likely to contaminate surface water or groundwater?  Given the extensive amount of environmental contamination and potential harm to health and the environment from some of the chemicals used in the past as components of munitions, it seems like it would be sound health, environmental and fiscal policy to try and screen out and prevent the introduction of a whole new generation of chemicals that could cause the same problems that we are spending billions of dollars to clean up now.  Is Congress really prepared to eliminate the authority for EPA to review new chemicals to be used in all types of munitions in one sentence of the Sportsmen bill? 

 3.       Congress has not held a single hearing to consider the need or merit of this change to TSCA.

Although numerous versions of the new TSCA exemption have been proposed in legislation and as amendments since CBD first filed its petition with EPA almost four years ago, somehow, Congress has not held a single hearing to consider any aspect of this issue, to hear from any stakeholder – or allow the public to hear from any stakeholder – or to build a record on which to base its action, including why this legislation is needed, what its scope and effect would be, what problems for health and the environment already exist as a result of the use of toxic chemicals used in munitions, how those problems are or are not being addressed, and what the implications are for the proposed exemption, including its effect on EPA’s ability to assess the safety of new chemicals to be used in munitions and on EPA’s ability to conduct hazard, exposure and risk assessments on those uses under a current or revised version of TSCA.

Presumably that public approach would not suit the NRA or other proponents of the provision, which may be why it has not happened yet, and why the Senate, like the House, is now poised to enact a seriously misguided provision, perhaps operating under the assumption that you can never go wrong by voting with the NRA, particularly in an election year.

It will be a particularly unfortunate irony if the TSCA exemption embedded in the Sportsmen’s bill is finally enacted in a bill introduced by Senator Hagan.  Previously, Senator Hagan has established a record of advocacy – along with her Republican North Carolina counterpart Senator Richard Burr – on behalf of the families who were poisoned at Camp Lejeune by long-term exposure to TCE, benzene and other toxic chemicals that have caused an unprecedented wave of pain, illness, death and loss.  What a shame that Senators Hagan, Burr, and many of their Senate colleagues are now poised to take away existing EPA authority to address essentially the same problem: human and environmental harm posed by the use of toxic chemicals by the military and others.

Senators Hagan, Burr, and every other Senator should rethink their willingness to support the TSCA provision in the Sportsmen’s bill. There is no urgency that requires jamming the TSCA rollback through Congress without the benefit of a single hearing to consider the serious issues involved; and there is no reason to poison the other parts of the Sportsmen’s bill with the TSCA rollback. A genuinely inspiring example of bi-partisanship would be an agreement to strip the TSCA section, and pass the rest of the broadly supported and non-controversial elements of the bill. This should be done regardless of any expected NRA scoring of the vote if it does not contain the TSCA provision.