Wither TSCA Reform?

As 2017 draws to a close, let’s check in on the progress of “TSCA Reform” which is shorthand for implementation of the recently revised Toxic Substances Control Act (TSCA)—the primary federal law intended to protect the public from exposure to unsafe chemicals in commercial and consumer products and in homes, schools, the workplace and the marketplace.

Broadly speaking, the centerpiece of the revised law establishes a system for EPA to evaluate thousands of existing chemicals to determine whether they pose an “unreasonable risk” to human health or the environment. If the chemicals pose an unreasonable risk, EPA is required to impose restrictions on the use of the chemical to eliminate the risk. For new chemicals proposed to be put into commercial use, they must undergo a heightened degree of scrutiny to determine whether they may pose an unreasonable risk, and, if so, restrictions (up to and including prohibition) also apply.

The revisions were signed into law by President Obama in June 2016, and the EPA spent the final seven months of his administration issuing proposed rules and taking other actions to meet a variety of deadlines established in the statute.  Among the key activities embarked upon by EPA were:

• Proposing to ban particular uses of three toxic solvents [trichloroethylene (TCE), methylene chloride (also called dichloromethane (DCM)), and n-methylpyrollidone (NMP)] due to the high health risks they pose to human health;
• Issuing proposed rules for how EPA would conduct its evaluation of “existing chemicals” (those already in use or included in the TSCA Inventory of chemicals) as well as how it would prioritize which chemicals to review;
• Implementing the heightened level of review for proposed new chemicals;
• Identifying the first 10 chemicals that the Agency would evaluate under the new law—asbestos, TCE, methylene chloride, n-methylpyrollidone, perchloroethylene (“Perc”), 1-4 dioxane, Hexabromocyclododecane (HBCD), 1-bromopropane, carbon tetrachloride, Violet Pigment 29.

All of these actions by EPA, and a few others that are a bit more obscure but also important, got off to a good start in the last year of the Obama Administration, with EPA proposing rules and implementing policies that appeared to largely comply with both the letter and intent of Congress in its bipartisan revisions to the law.

But then President Trump took office, polluting industry puppet Scott Pruitt was installed as the head of the EPA, and the wheels came off.

Since President Trump’s inauguration, EPA’s policies on toxics have rapidly shifted to accommodating and parroting the world’s largest corporations that make many of the world’s most toxic chemicals—Dow-Dupont, Exxon, Monsanto—and the early proposals and policies developed under the Obama Administration have now been reversed, weakened or effectively terminated. Here are a few of the most important changes that are underway:

Staffing the Toxics Office with industry hacks

Starting with staffing, Pruitt and the White House put Nancy Beck—a top lobbyist for the chemical industry—in charge of EPA’s Toxics Office. Beck was put in the highest level political position that did not require Senate confirmation, and she has been running the office as though she still holds her previous position as a chemical industry lobbyist—as described in some detail in a recent New York Times article. Beck was hired under an obscure provision that allowed her to avoid being subject to the Trump Administration’s “Ethics Pledge,” and she received a highly questionable waiver from EPA’s Ethics Office allowing her to work directly on the same set of issues for which she had most recently lobbied on behalf of her chemical-company clients. Citizens for Responsibility and Ethics in Washington (CREW) has asked the EPA’s Inspector General to investigate the matter. Meanwhile, EPA has been hit with Freedom of Information Act (FOIA) requests from multiple organizations—including NRDC—to gain some public insight into her activities at the Agency.

Meanwhile the Administration’s nominee for the position that would run the office, Michael Dourson—perhaps the industry’s favorite scientific consultant—ran into trouble when he bombed at his Senate confirmation hearing. As Democratic Senators chronicled his remarkable record of industry-favorable reports consistently concluding that a menagerie of toxic chemicals are not as dangerous as EPA and other scientists and health officials had previously concluded, Dourson steadfastly refused to recuse himself from activities related to chemicals he had previously assessed on behalf of chemical manufacturers. Not to be dissuaded from having a top apologist for carcinogens and other dangerous chemicals on his staff, Administrator Pruitt hired Dourson as a “special advisor,” to work at EPA while his nomination was stalled.

Ultimately however, Dourson withdrew his nomination—and reportedly planned to leave EPA entirely—after the two Republican Senators from North Carolina—Richard Burr and Thom Tillis— announced that they would vote against his nomination, all but ensuring he could not be confirmed. North Carolina continues to grapple with the tragic history of drinking water contaminated with TCE and other chemicals at the Camp LeJeune Marine Base, and is facing a current crisis of drinking water in the Cape Fear River Basin being contaminated with “Gen X” a Teflon-like chemical that has been dumped into the drinking water source of North Carolinians for years by DuPont (now spun off as “Chemours”). One of Dourson’s more controversial previous assignments was consulting with the state of West Virginia—having been recommended by Dupont—to set an “acceptable” level for another one of Dupont’s deadly toxic products—the Teflon chemical PFOA. Gen X is a DuPont substitute for PFOA, and it looks like the same tragedy of poisoned communities in West Virginia could be repeating itself now in North Carolina. It was not a good time for North Carolina’s Senators to be voting for a chemical industry enabler and apologist.

That said, it is entirely possible that the Trump Administration will nominate someone at least as bad as Dourson or Beck—or perhaps even worse—to fill the top spot at EPA’s Toxics office. The common thread is sure to be that none of them have any discernible interest in protecting the public from toxic chemicals, or any intention of taking even a single step toward doing so.

Fixing the rules of the game to benefit chemical manufacturers

As described in the New York Times, immediately after arriving at EPA, Nancy Beck took it upon herself to almost single-handedly rewrite the Agency’s proposed rules for how to evaluate chemicals and how to prioritize which ones to be evaluated. The final rules took the opposite position as EPA had previously proposed on a fundamental issue—whether EPA needs to consider all of a chemical’s uses in determining whether it poses an ‘unreasonable risk’. The law is clear on the point—and the EPA’s original proposal tracked the statute’s mandate for consideration of all “known, intended and reasonably foreseeable” uses. Under the revised rules preferred by the chemical industry, EPA could ignore uses of chemicals that contribute to their overall risk, thus underestimating the harm they are causing people, and leading to an inaccurate assessment of the chemical’s risk to the public. NRDC is one of several environmental and health organizations that is challenging the Agency’s final rules in federal court.

Postponing protection from dangerous solvents

EPA proposed to ban specific uses of three toxic solvents—Trichloroethylene (TCE), methylene chloride (MC), and n-methylpyrollidone (NMP)—including as a spray fixative and spot remover (TCE) and as a paint stripper (MC and NMP). These were the first three “existing” chemicals that EPA had proposed to regulate under TSCA in twenty-five years. All three chemicals have been extensively studied and associated with both illness and death. Methylene chloride has killed dozens of people in the U.S., including a young high school student in Tennessee just a few months ago. The death does not appear to have added any urgency to the Pruitt EPA’s task, and EPA has signaled its plan to indefinitely delay finalization of the proposed rules. The next death(s) due to inhalation of methylene chloride will truly be on the hands of Scott Pruitt, Nancy Beck, and President Trump.

Weakening the review of new chemicals

Among the changes to the Toxic Substances Control Act was a tightening of the standards for EPA to review whether a new chemical may pose an ‘unreasonable risk’ to the public. Before Nancy Beck arrived as part of the chemical industry’s takeover of EPA’s Toxics office, the Agency was following the requirements of the law and putting more limitations on the use of many new chemicals, to protect people from the uses that were approved as well as other reasonably foreseeable uses of the chemical. But now the agency has reversed course, announcing a new “framework” for reviewing new chemicals that is inconsistent with the law’s requirements and that will make EPA’s review of new chemicals even less effective than it was under the original law. EPA is the only meaningful gatekeeper to prevent dangerous new chemicals from reaching our homes. Weakening the scrutiny of new chemicals raises the likelihood of additional chemical disasters down the road—the next toxic flame retardant, dangerous solvent or Teflon-type substitute could easily get a free pass into our homes and our drinking water under the Dow/Beck/Pruitt TSCA Program.

Taking away the public’s right to know

Under TSCA, chemical manufacturers are required to report a set of information to EPA every four years, including how much of a chemical they are manufacturing or importing (above a certain threshold), where they are being manufactured, and whether they are being used in commercial and/or consumer products. The Chemical Data Reporting (CDR) rule yields information that is mostly made public (except for confidential business information) and it is an important tool for citizens, states, and policy makers to obtain at least some of the information necessary to have an accurate picture of chemical production, processing and use in this country. The reporting rule contributes to an understanding of sources, amounts and patterns of chemical exposure, which are necessary to produce accurate risk evaluations of chemicals, one of the fundamental purposes of the revised TSCA. However, indications are that in the next six months or so, EPA will propose changes to the rule that will reduce transparency, remove important information from the public, and lead to evaluations of chemicals that will likely understate the risks they pose to public health.

TSCA Reform Is Withering

In less than a year, any notion of “TSCA Reform” that isn’t defined as: “anything that Dow wants,” appears to be dead, at least for the next three years. There is no reason to expect that EPA will take any meaningful steps to protect the public from toxic chemicals during the Trump administration. But those who seek and support meaningful restrictions on toxic chemicals to protect people from cancer, learning and developmental disabilities and reproductive harm cannot afford to just let the revised TSCA wither.

We are not content to allow the chemical industry takeover of EPA to go unchallenged. Many of the current EPA’s recent and potential actions on TSCA are of dubious legality, and will likely be challenged in court (some already have been). If the Agency’s actions are overturned by court decisions, the TSCA Program could potentially end up in a better place, thanks to the overreach of Pruitt, Beck and the chemical manufacturers. Meanwhile, advocates have many other opportunities to increase public protection from toxic chemicals, pursuing other promising avenues at the state and local level, and in the marketplace—and those opportunities are growing in direct response to how the Trump Administration and the chemical industry are derailing TSCA reform. The chemical manufacturers think that they are winning at the federal policy level, and in the short term they are, but their current victories are pyrrhic—the overwhelming trend of the country, driven by public demand for transparency and safety is toward greater disclosure of ingredients and product information, adoption of sound chemical management policies, and movement away from entire classes of chemicals of dubious safety.  

The darkest hour is always just before the dawn. Springtime for real chemical safety is just around the corner.