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TSCA reform: The terrible twos edition

We recently marked two years since the enactment of the Lautenberg Chemical Safety for the 21st Century Act. The law, more commonly known as TSCA reform, was the much heralded and long-awaited bipartisan update of the Toxic Substances Control Act (TSCA), a 1976 law that never really got off the ground as a public health protection.

While the final bill fell short of the reform that we’d worked for, we won on several important issues. We recognized that, if EPA got it right and implemented the letter and spirit of key provisions, the law could protect Americans from dangerous chemicals and have a substantial impact.

Commenting on the final bill, our late campaign director Andy Igrejas said: “Let’s bring our A-game to implementation and get the most out of what we won.”

Unfortunately, while Safer Chemicals Healthy Families and our coalition partners have clearly played a good game, the chemical lobby has laid claim to the umpires, the playing fields, and all the bases. With the Trump Administration so clearly bent on ripping up the regulatory playbook, this has not been our season.

While the Obama EPA got right to work in 2016 acting on the new law’s requirements and putting the new tools to work to take on known chemical hazards, everything changed under the Pruitt EPA. It has failed to protect public health and the environment from toxic chemicals in a number of ways. Here are some of the high low lights.

Green lighting new chemicals

Congress was concerned about the inadequate safeguards against unsafe new chemicals in the original TSCA and significantly strengthened EPA’s ability to review new chemicals in the 2016 update. In a big step forward, EPA is now required to make an affirmative determination of safety before a new chemical goes to market. Under the old TSCA, EPA had just ninety days to evaluate a new chemical before allowing it on to the market. This meant that most new chemicals got a green light to go to market without thorough review.

For the first several months after President Obama signed the bill into law, EPA staff diligently worked toward its goals. After careful review, the agency found that, in most cases, it either did not have enough information for an informed evaluation of the safety of a new chemical or that, under its conditions of use, the new chemical “may present an unreasonable risk.” As a result, nearly 75 percent of new chemicals were placed under orders for limited human exposure and environmental release, requiring increased testing to better understand potential hazards. But the chemical lobby mounted relentless and misleading attacks on EPA’s supposed “overreach” with false claims that the changes in the law were insignificant and not meant to disrupt the old status quo in this way.

Rather than standing its ground and resisting industry pressure to weaken the new law, the EPA’s political leadership intervened to roll back program improvements that the staff had put in place. In November 2017, the EPA issued a “framework” for evaluating new chemicals that reversed recent progress, replacing an effective review process with one that is legally dubious, poorly conceived and a major step backward in protecting our health and the environment.

Stronger reviews of new chemicals are among the most important enhancements of chemical safety in the 2016 TSCA reforms. Our grave concerns surrounding the EPA’s implementation of these reforms led Safer Chemicals, Healthy Families and the Natural Resources Defense Council to challenge the lawfulness of the new chemicals framework in court.

Slamming the brakes on a proposed ban on dangerous paint strippers

One of the EPA’s first acts under its new stronger authority was a proposal to ban paint strippers and other coating removers containing methylene chloride and N-methyl-2-pyrrolidone (NMP) for consumer and most commercial uses.

Both chemicals had been under review by the EPA for years, and the agency had well documented the case for banning both for use in paint strippers. Methylene chloride, for example, has a record of more than sixty deaths since 1980 from inhalation of the chemical. It also is known to cause several types of cancers as well as liver, kidney and reproductive toxicity. A broad set of studies across multiple species show that NMP causes developmental toxicity (fetal death or decreased infant birth rates) and other health effects.

After tough questioning in Congressional hearings about why the proposed ban had been indefinitely delayed and a meeting with families of consumers who died using products containing methylene chloride since the ban was proposed, EPA Administrator Scott Pruitt announced on May 10 that the final rule would be sent to the Office of Management and Budget “shortly.” The public is still waiting, but major retailers are not – in the past month, three of them have announced that they will end sales of paint stripping products containing methylene chloride or NMP by the end of 2018.

Changing the rules of the road

There are tens of thousands of chemicals in commerce. Most have not been properly reviewed for their health effects. That’s a big mountain for EPA to climb. We knew when the bill was signed that the pace of evaluation and management would be slow. The 2016 law required the EPA to develop “framework rules” that outline how it would choose which “existing” chemicals it would assess and how it would conduct those assessments. While the rules proposed in early January 2017 were health protective and were met with a great deal of public support, the final rules issued by the Pruitt EPA in June 2017 were rewritten to conform to the chemical lobby’s wishes, and failed to ensure that unreasonable risks to health and the environment are fully assessed and eliminated.

As finalized, the framework rules brought back some of the failures of the original TSCA, so Safer Chemicals Healthy Families and several of our coalition partners filed a petition with the U.S. Court of Appeals for the Ninth Circuit to review them.

Ignoring chemical hazards

The Lautenberg Act requires the EPA to systematically and comprehensively assess chemicals already on the market by looking at all uses and exposures to a chemical. The first ten chemicals that EPA prioritized in the first year have widespread and substantial exposure and multiple adverse health effects. Comprehensive and health protective assessments of their safety are essential to safeguard communities and vulnerable populations and to set a precedent for strong and effective implementation of the new law.

Asbestos, for example, was widely seen as the “poster child” for TSCA reform, with recognition that TSCA was so weak that EPA couldn’t even use it to regulate a deadly chemical like asbestos. An estimated 15,000 Americans die each year from diseases associated with asbestos exposure, so it is incomprehensible that EPA would ignore the millions of pounds of asbestos deposited in hazardous landfills or discarded in routine dumpsites each year.

Also defying common sense is the EPA’s plan to ignore exposures from the chemicals’ presence in the air, the ground or water in most cases. Not only does this jeopardize the integrity of the evaluation, it disregards exposures to vulnerable populations like fence-line communities that the reformed TSCA requires the EPA to explicitly consider and mitigate risks.

Safer Chemicals Healthy Families founder Andy Igrejas published a blog post in 2016 with the Key Takeaways from the Passage of TSCA Reform. His words are even more true today:

To the concerned public: Keep up your guard and stay involved. You know who you are. You might not be a professional advocate, but you have become a change-maker for a safer environment for you and your family. You choose safer products, but also take action, at least occasionally, to push for more systemic improvement. You might come at the issues from the perspective of breast cancer, from a concern about learning disabilities, or just general concern for public health. The key question you have is: does this bill solve the problem of toxic chemicals? The short answer is no. No one can credibly argue that this bill solves the problem of toxic chemicals and their impact on public health in the United States. The progress at the federal level will just be too slow.

The good news is that because of the reforms, the federal government can finally be part of the solution. The EPA can get in on the action of advancing public health and environmental protection. Consumer-driven campaigns will probably still produce more change, more quickly than EPA can. So keep reading labels and keep taking action for your own family and the broader world. Keep pressuring companies to substitute safer chemicals for unsafe ones. Keep holding your retailers accountable for what they sell through our Mind the Store campaign and similar efforts. But now, also help us keep EPA’s feet to the fire to use their new powers to the maximum degree.

Let’s keep holding EPA’s feet to the fire.