The Year in Toxics: The Good, the Bad and the Ugly from 2017

Needless to say, it was a very strange year. In the world of toxic chemicals, there were disappointing setbacks but also several significant advances. On balance, there is reason for some (guarded) optimism heading into 2018. The chemical industry takeover of EPA’s toxics office is projected to continue, but many of the actions taken there are likely to be temporary and ultimately reversible. That said, the Trump-Pruitt EPA’s refusal to take health-protective action on even the most notoriously dangerous and deadly chemicals like methylene chloride and chlorpyrifos will continue to cause deaths and disabilities to people across the country, including the most vulnerable populations—children, pregnant women, workers—that the Agency is required by law to protect.  Ironically, nearly two years after the enactment of major revisions to the Toxic Substances Control Act (TSCA), states continue to be in the lead on sound policies to protect the public from toxic chemicals. And the wave of activity by retailers and product manufacturers to get ahead of consumer demand for full ingredient disclosure and non-toxic products continues to build.

Here are a half dozen of the most important (domestic) activities and developments on Toxics in 2017:

1. Chemical industry takeover of EPA’s Toxics Office

The biggest story in Toxics World in 2017 was the chemical manufacturers’ occupation of EPA’s Toxics Office. Industry executive and lobbyist Nancy Beck took over the office in April. After receiving a questionable clearance from EPA’s Office of Ethics—an ethics group has called on EPA’s Inspector General to investigate—Beck has spent the last nine months imposing and implementing the chemical industry’s agenda, brushing aside opposition from the Agency’s own scientists and lawyers.

TSCA: Beck’s busy year included rewriting the “Framework Rules” for implementing the revised Toxic Substances Control Act, (TSCA)—NRDC and other organizations have sued over the final rules. Under Beck, EPA is weakening the long-existing system for conducting hazard assessments of new chemicals before they are allowed into household products. Maybe even worse, EPA is doing an about-face and bringing to a grinding halt the proposed rules to ban specific uses of three highly toxic solvents, leaving products on the store shelves that EPA scientists have deemed too dangerous to be used.

Chlorpyrifos: Even before Nancy Beck arrived, EPA anti-Administrator Scott Pruitt was already on the job, working aggressively to undermine the Agency on behalf of the chemical manufacturers and other polluting industries. One of his first significant acts as Administrator was to shelve the Agency’s proposed ban on most outdoor uses of chlorpyrifos—a highly toxic pesticide made by Dow AgroSciences that EPA scientists determined was too dangerous due to scientific evidence linking it to developmental delays in children exposed during fetal development, and acute poisonings of farmworkers. NRDC and Pesticide Action Network petitioned EPA nearly eight years ago to ban these uses; residential uses were banned years ago after EPA scientists found that home and garden uses were routinely poisoning kid’s. Instead, Pruitt announced that the Agency would spend an additional six or seven years studying the issue, thus steamrolling over science to pave the path for Dow Chemical to continue with its toxic business as usual. He also made it a priority to delay (and presumably derail) protections for pesticide applicators—because requiring pesticide applicators to be at least 18 is such a terrible idea? Our friends at Earthjustice have sued over that one.

In less than a year, Pruitt and his staff have painted a very clear picture of what it looks like when an Agency puts politics ahead of science, and does not care at all about the health and safety of the people it is supposed to protect. 

2. The Consumer Product Safety Commission did its job, twice

In one month, the CPSC did more to protect the public from exposure to toxic chemicals than EPA will likely ever be able to do under the Trump Administration.

Phthalates: It took a lawsuit by NRDC and our allies, but the Consumer Product Safety Commission (CPSC) finally took the action mandated by Congress in 2008 and banned the use of five phthalates—toxic endocrine disrupting chemicals used to soften plastic—from toys and child care articles, such as teething rings and pacifiers. An expert science advisory panel issued a peer-reviewed report that found all five phthalates to be associated with harm to the male reproductive system, including undescended testes, testicular atrophy and genital malformation.  The largest manufacturer of phthalates is Exxon, and the company, along with the chemical manufacturers’ trade association, the American Chemistry Council, mounted an aggressive lobbying campaign against the Commission at every step in the process, seeking to avoid any restrictions. But at the end of the day, the CPSC scientific and technical staff and a majority of Commissioners reached the right result to protect children.

The major source of exposure to phthalates is through food. Phthalates are allowed by FDA to be used as “indirect” food additives in food processing and packaging, even knowing that they will get into our food supply. NRDC and nine other organizations petitioned the FDA almost two years ago to withdraw its approval for uses of phthalates as indirect food additives. But the FDA has stonewalled on the petition, leaving citizens little choice but to take the fight directly to food manufacturers producing products containing phthalates. NRDC is part of the Coalition for Safer Food Processing and Packaging which tested a range of products including cheese, yogurt and infant formula. Among other products in which phthalates were found, Kraft Mac n Cheese has garnered scrutiny. With FDA historically even worse than EPA at addressing the threat of toxic chemicals, true protection is only likely to come as a result of litigation against the FDA, or direct consumer pressure on processed food conglomerates. The stage is set for some food producers to come clean in 2018.

Flame Retardants: The CPSC took another major step forward that will reverberate in chemical policy for years to come—indeed the effects are already being felt in the states and the marketplace. The Commission granted a lengthy and detailed scientific and legal petition from a range of groups including the American Academy of Pediatrics, the Learning Disabilities Association, Consumer Federation of America and the International Association of Fire Fighters. The petition asked the CPSC to protect children by banning the use of the entire class of organohalogen flame retardants from four product categories: toys, mattresses, residential furniture and plastics casings of electronics (like the plastic shell of your TV screen). The Commission will now move forward with a rulemaking to implement the ban—a process that could take years. In the meantime it also issued a statement—formally called a “Guidance”—advising product manufacturers not to use any organohalogen flame retardants in their products, and warning retailers and consumers to avoid such products to the extent possible. The Commission recognized the overwhelming scientific evidence it was presented in support of the petition: that every member of the organohalogen class that has been tested had been shown to cause harm. The Commission also understood the policy imperatives of acting on the entire class of related chemicals, rather than letting manufacturers switch out one for another, as the science continuously loses ground trying to evaluate each chemical one by one.  Addressing chemicals like the organohalogens as a class is the only way to take meaningful steps forward in public protection and avoid toxic ‘regrettable’ substitutions.

The CPSC will likely run aground for the foreseeable future, if and when the Trump Administration’s nominee Dana Baiocco is confirmed, but the Commission has already taken a giant step forward for public policy, and its actions on both phthalates and flame retardants will be carried forward by the states and in the marketplace.

3. States continue to fill the vacuum

As the prospect for any publicly beneficial activity under TSCA stalled states continued to fill the vacuum left by a zombie EPA whose brain has been eaten by the corporate trade groups American Chemistry Council and CropLife America, and their toxic chemical producing member companies.

In California, environmental groups and product manufacturers negotiated final legislation resulting in the first law of any state requiring transparency and labelling of the ingredients in cleaning products. NRDC and our allies including Breast Cancer Prevention Partners, Women’s Voices for the Earth and Environmental Working Group reached agreement with major product manufacturers including Procter and Gamble, Reckitt Benckiser (they now go by “RB”), SC Johnson, Seventh Generation and the Honest Company. The California law, along with nearly-final rules being developed in New York, is expected to lead to greater information for consumers across the country. Equally notable is the opposition to the negotiated compromise: the chemical manufacturers (via The American Chemistry Council) and their anti-consumer protection allies, The Grocery Manufacturers Association because it set a “bad precedent.” That chemical and grocery manufacturers both want to hide what is in those groceries we’re buying—could it be phthalates?—is more than a little disturbing!

Both Rhode Island and Maine adopted legislation banning the use of flame retardants in specific product categories. Maine adopted a phase out of all flame retardants in upholstered furniture, while Rhode Island banned the use of organohalogen flame retardants—the same class identified by the CPSC—from bedding and furniture. San Francisco also banned the use of flame retardants in upholstered furniture. The states’ (and local governments’) leadership, along with the recent actions by the CPSC, signal the end game on some of the most notorious and unsafe uses of these toxic substances.

4. Dupont’s reckless disregard for public health cost Michael Dourson his dream job

The full scope and impact of the pollution of our drinking water with Teflon chemicals has not yet fully come into focus, but it is clearly vast. It is already causing political tremors, and it may soon become an earthquake that rattles both state Houses and Washington. For years, DuPont dumped toxic “Teflon” chemicals into the rivers (and drinking water supplies) of people in both West Virginia and North Carolina. In West Virginia it was “PFOA” and in North Carolina it has been “GenX” the supposedly safer substitute for PFOA. This growing health crisis and corporate scandal intersected in a marvelously karmic fashion with Michael Dourson’s nomination to lead EPA’s Toxics Office. Dourson, a toxicologist-for-hire who pays the rent by downplaying the health threats of toxic chemicals, had previously advised the state of West Virginia on setting an acceptable level for PFOA in drinking water—suggesting a level 50 to 150 times less protective than what DuPont itself had discussed internally. It probably seemed like just-another-day-at-the-office for Dourson, but it became a key piece of the evidence raised against him at his spectacularly disastrous nomination hearing, in which he repeatedly refused to recuse himself from working at EPA on chemicals for which he had previously consulted for the chemical industry.  His performance and record were enough to ensure that every Democratic Senator, including West Virginia moderate Joe Manchin, opposed his nomination. But the actual derailment came as a result of citizen pressure on North Carolina’s two Republican Senators—Thom Tillis and Richard Burr. As the backlash in North Carolina against Dupont—which has spun-off its Teflon chemical business as “Chemours”—continued to grow, both Senators opted not to support an industry apologist with such close ties to the company, spelling doom for Dourson’s nomination, which he subsequently withdrew.

5. EPA Anti-Administrator Scott Pruitt embraces the industry’s war on independent science

In business terms, independent science—meaning science that is not purchased by the chemical manufacturers—is something that the industry simply cannot afford. Non-industry scientists have the potential to identify the hazards posed by a chemical—is it a carcinogen, or developmental or reproductive toxin; as well as the potential for exposure to chemicals from everyday uses—because it migrates out of household products into house dust that is then inhaled or ingested.

There are risks posed by toxic chemicals, such as cancer, poor sperm quality, infertility, chronic diseases and disabilities, when they migrate out of consumer products and into our homes and ultimately our bodies. Independent scientists also pose the “threat” to the industry of providing EPA with objective scientific advice and feedback, without operating under the industry’s imperative to block or delay any negative assessment or restriction of a chemical for as long as possible.

Thus, EPA Anti-Administrator Scott Pruitt did the industry a huge favor when he implemented one of its more extreme policy goals: purging independent scientists from serving on the Agency’s Science Advisory Boards (SAB) purportedly due to the “conflict” that arises from scientists receiving research grants from EPA. The notion of the conflict doesn’t hold up—the grants are provided through an open and competitive process, with no pre-determined outcome of the research and no policy strings attached. Not surprisingly, Pruitt also moved to fill open SAB seats with industry hacks. Pruitt’s new policy is not only based upon a phony presumption, it is likely illegal. The first of what are expected to be multiple legal challenges has already been filed.

6. Retailers signaled their intent to protect their brands, not the chemical manufacturers

There were clear signs that the Retailing sector is beginning to move to increase ingredient disclosure, eliminate chemicals of concern from key product lines, and adopt rigorous chemical management policies in response to growing consumer demand. The dynamic is inevitable in the face of federal government inaction on chemicals—as typified by the industry-protective policies of EPA and FDA (see above). Some of the recent changes are discussed in the year-end Retail Report Card issued by Mind the Store, as well as specific announcements about planned or intended changes made by a number of retailers including CVS, Target, Walmart.

Given the toxic politics of the past year (see what I did there?), it is rather surprising to be feeling a bit of optimism heading into year #2 of the Trump/Pruitt/Beck (and whomever-is-nominated-to-fill-the-still-vacant-Michael-Dourson-slot) Administration. The lobbyists and executives for Dow, Dupont, Exxon, Monsanto and the other chemical manufacturers may still be pinching themselves at their good fortune, but their luck will run out eventually, and 2018 could well be the year of reckoning.

About the Authors

Daniel Rosenberg

Senior Attorney, Health & Environment program

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