The 9th Circuit Court of Appeals has ruled that the agency cannot ignore legacy uses of a chemical, and that its regulations do not allow it to pick and choose amongst uses of a chemical and sources of exposure as part of its risk evaluation.
When the history of the Toxic Substances Control Act (TSCA) is written, November 14, 2019 will be remembered as the date when the anti-science policies the Trump administration wrote after the chemical industry takeover of the U.S. Environmental Protection Agency’s Toxics Office in January 2017 started to unravel. That’s when the 9th Circuit Court of Appeals issued its decision in a legal challenge to the EPA’s “Framework Rules” establishing how it will prioritize chemicals and evaluate whether they pose an unreasonable risk to health and the environment.
The Court rejected EPA’s effort to create loopholes to overlook some uses and sources of exposure to toxic chemicals like asbestos, 1,4 dioxane, and lead when evaluating whether chemicals pose an unreasonable risk. Specifically, the court ruled that EPA cannot ignore “legacy uses” of a chemical. When considering the risk a chemical poses, the agency must consider, for example, the ongoing presence of asbestos in buildings—or its future disposal—even if it’s no longer manufactured. The Court also ruled that EPA’s regulations do not allow it to pick and choose amongst various uses of a chemical and sources of exposure as part of its risk evaluation, a concern raised by those of us challenging EPA’s rules.
The Court declined to rule on a third potential loophole in EPA’s policy. We argued that EPA could divide up individual uses of a chemical – such as a toxic flame retardant’s separate use in furniture, consumer electronics, and carpeting – and decide that each one, considered alone, doesn’t pose an unreasonable risk, while avoiding an assessment of the combined risk of all of the uses. On this point the Court held that the agency had not made clear its intention to pursue a “use by use” strategy, and that we could bring a legal challenge if and when EPA actually implements that approach.
The decision is bad news for the Trump EPA officials who hijacked EPA’s TSCA policy when they took over the Toxics office in 2017. It’s also a blow to the chemical manufacturers whose lobbyists have spent the past three years writing EPA’s policies on toxics, including TSCA, pesticides (chlorpyrifos) and scientific research.
TSCA requires EPA to complete risk evaluations of ten chemicals by June 2020. EPA will now have to scramble to re-write its draft evaluations to account for ongoing “uses and disposals” of so-called “legacy” chemicals, including asbestos and the flame retardant HBCD. It will have to ensure that its evaluations consider all the “known, intended and reasonably foreseeable uses” of a chemical. That means EPA’s risk evaluations will have to accurately account for all of the ways people are exposed to chemicals – such as through consumer products, or exposure in the workplace. This will lead to more accurate assessments of the risk posed by those chemicals. Ultimately, it means stronger controls on their use, and more protection for the public. In other words, after yesterday’s court ruling, EPA is going to have to implement TSCA as Congress intended, rather than as Dow and Dupont intended.
The decision yesterday applies to multiple legal challenges brought by a number of organizations that the appeals court had consolidated into one.
NRDC sued on behalf of itself and two other organizations: Cape Fear River Watch and the Alliance of Nurses for Healthy Environments. The other petitioners in the consolidated lawsuit include:
- Earthjustice on behalf of Alaska Community Action on Toxics, Environmental Health Strategy Center, Environmental Working Group, Learning Disabilities Association of America, Sierra Club, Union of Concerned Scientists, We Act for Environmental Justice;
- The OSH Law Project on behalf of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC;
- Safer Chemicals, Healthy Families, Vermont Public Interest Research Group and the Asbestos Disease Awareness Organization; and the Environmental Defense Fund.
Counsel for the groups challenging EPA’s Framework Rules worked together on the briefs and the oral argument. My NRDC colleague Sarah Tallman argued the case on behalf of all the plaintiffs. The court’s decision reflects extremely hard work and excellent collaboration among the counsel in the case.
The Court’s decision is only the first of what could potentially be a wave of reversals of the Trump EPA’s industry-friendly (and industry written) toxics policies, both TSCA-related and otherwise. EPA has issued several draft risk evaluations, including for Pigment Violet 29, HBCD, 1-bromopropane and 1,4 dioxane. Each of the draft risk evaluations has a host of problems that make them legally vulnerable if they’re not revised significantly when finalized.
EPA has systematically and deliberately:
- avoided accounting for exposure to toxic chemicals from multiple sources;
- relied upon flawed scientific studies;
- assumed the use of workplace protections without evidence;
- ignored or explained away information suggesting potential health or environmental harm;
- refused to obtain available information to accurately evaluate chemicals; and,
- excluded consideration of meritorious studies without explanation.
The reviews from EPA’s own expert science panel (that TSCA requires) have not been kind—if translated into letter grades, EPA would be getting all Ds and Fs. None of this bodes well for EPA’s current approach when courts begin to review the final risk evaluations.
EPA is currently doing no better when it comes to prioritizing chemicals for evaluation. EPA recently proposed to designate 20 chemicals as “low priority”— meaning that EPA has concluded that they have no potential to pose an unreasonable risk to human health or the environment. NRDC submitted joint comments this week, along with Safer Chemicals Healthy Families, Earthjustice and the Environmental Health Strategy Center. Our comments spell out dozens of major scientific and legal problems with EPA’s analysis of its proposed “low priority” chemicals. Once finalized, those low priority designations will be subject to judicial review under TSCA.
EPA’s proposed TSCA Framework Rules were re-written in 2017 by the chemical industry lobbyist Nancy Beck after she was tapped to run EPA’s Toxics Office by then-Administrator Scott Pruitt, a process chronicled in the New York Times. Beck is now working at the White House, as the Administration’s point person on trying to prevent any meaningful regulation of the class of “forever” chemicals known as PFAS that have contaminated drinking water supplies throughout the country. So, the fight to stop Dow, Dupont, Monsanto, 3M, and other chemical giants from polluting our environment and poisoning our health—with PFAS, with cancer-causing solvents like TCE, with chlorpyrifos—will continue. NRDC and our allies will fight to enforce the law to protect the public, as many times as necessary, for as long as it takes. Ultimately, when the Trump/industry effort is defeated, the public will be safer and healthier.