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Battle Lines Are Drawn as Congress Reforms the 40-Year-Old Toxic Substances Control Act
2016 marks the 40th anniversary of the Toxic Substances Control Act (TSCA). But there is little to celebrate. Signed into law by President Gerald Ford in 1976, the TSCA has been sharply criticized for failing at what it was meant to do: protect public health and the environment from the tens of thousands of chemicals that saturate the marketplace and the hundreds of new ones that are introduced every year.
Adding to the concern is the fact that the law hasn’t been significantly updated since it was enacted, during which time some 22,000 new chemicals have entered American commerce, with around 700 new ones rolled out each year. Many of these chemicals—most of which did not previously exist in nature—have been widely dispersed throughout the environment, into the air, soil and water where some will persist for decades or even centuries.
The figures are staggering. Every year, around 4 billion pounds of toxic chemicals are released by American industries. In 2011 alone, 16 new chemicals accounted for nearly 1 million pounds. There is far too little testing of these substances: Only a fraction of the nearly 3,000 high-production-volume (HPV) chemicals—chemicals that have an annual production run of at least one million pounds—have been studied for their potential toxicity. According to the Environmental Protection Agency (EPA), the agency has “only been able to require testing on a little more than 200 existing chemicals” out of the 62,000 that have been introduced since the TSCA’s enactment. The EPA has banned just five.
It has been a long time in coming, but after several years of negotiations, two bills seeking to overhaul the TSCA have finally been passed in both houses of Congress. And while one might assume a federal effort to improve the TSCA would receive widespread popular support (a nationwide poll conducted in 2012 found that nearly 74 percent of Americans believe the threat of chemical exposure to people’s health is serious), the legislation has been met with fierce opposition—and not from the chemical industry.
For decades, regulating chemicals in the U.S. has been a “too little, too late” exercise in futility. Now that Washington is on the verge of a major overhaul, chemical policy reform has become a pitched battleground. Several stakeholders have been vying for leverage, from federal lawmakers and state attorneys general, to chemical industry lobbyists and community activists, to public and environmental health activists. How did something so basic as keeping people and animals safe from dangerous substances become such a highly politicized arena?
One Word: Plastics
Since World War II, some 80,000 new chemicals have been invented. But it wasn’t until the early 1970s when the President’s Council on Environmental Quality (CEQ), formed in 1969 under the Nixon administration, proposed federal legislation to regulate American commerce in chemical substances. So why did it take so long for the government to address the potential health and environmental effects of chemicals? It’s a familiar and tragic narrative: Public health regularly takes a back seat to corporate interests. Time and time again, major toxic disasters occur, reminding us just how susceptible humans, animals and the environment are to toxins produced by industrial activity. Look at Love Canal in Niagara Falls in the 1950s, Times Beach, Missouri in the 1970s or the Summitville mine in Colorado in the 1980s. More recently, there was the Exide lead contamination in Los Angeles. Today, the Flint water crisis unfolds in Michigan.
While big disasters such as these make national headlines, it was actually a series of festering environmental contamination events around the country—and the community activism that gradually grew around them—that set the stage for the TSCA’s passage.
Polychlorinated biphenyls (PCBs) were contaminating the Hudson River; polybrominated biphenyls (PBBs) were contaminating agricultural produce in Michigan; and chlorofluorocarbon (CFC) emissions were depleting the ozone layer. But it was the process behind making polyvinyl chloride, a plastic commonly known as PVC, that was ultimately the driving force that finally got the law passed. In their 2002 book, Deceit and Denial: The Deadly Politics of Industrial Pollution, public health historians Gerald Markowitz and David Rosner write, “While the discovery of various kinds of industrial pollution had led the EPA to begin pressing for passage of Toxic Substances Control Act, the publicity and seriousness of the vinyl crisis would become the impetus for more assertive efforts to get TSCA passed, with a view toward regulating more chemicals than vinyl chloride.”
Developed in the 1920s, PVC is one of the most used plastics in the world. Impervious to rust and rot, it is used predominantly in water systems, sewer lines and underground wiring and also across a wide array of consumer goods, from tire treads and credit cards to children’s toys and medical devices. In many ways, PVC has changed things for the better, particularly across the developing world, where almost all the clean water projects depend on bacteria-resistant PVC pipe. Chemical engineer Arjen Sevenster, who sits on the board of EU vinyl industry trade group VinylPlus, is a vocal proponent of PVC, the third most widely produced synthetic plastic polymer in the world. “PVC products make life safer, more comfortable and more pleasurable,” he said. “And, because PVC has an excellent ratio of economic cost to performance, it allows people of all income levels access to these important benefits.”
But there is a big problem with this popular plastic. In order to make it, you need to start with vinyl chloride (VC), an intermediary organic compound that was implicated in causing liver damage as early as the 1930s, when the PVC industry was still in its infancy. But it wouldn’t be until 1949, when Russian researcher S.L. Tribukh published a paper about the health effects of VC that it became clear: VC exposure causes liver injury.
In the decades to follow, her research would be tragically manifested in the workplace. A mortality study conducted in 1988 by the Health and Safety Executive, the United Kingdom’s independent regulator for work-related health, found that between 1940 and 1974, there were 11 tumor-related deaths among British vinyl workers—seven of them from angiosarcoma, an exceedingly rare cancer tumor of the liver. The HSE concluded that the deaths indicated “a significant excess of non-secondary liver tumors.” By the late 1960s, the issue got attention in the U.S., when four cases of angiosarcoma were diagnosed among workers at a B.F. Goodrich tire-making plant near Louisville, Kentucky, between 1967 and 1973. The episode was one of the earliest reports of an occupational disease outbreak published by the Center for Disease Control’s (CDC) Morbidity and Mortality Weekly Report.
The 1967 film The Graduate was one of the biggest movies of the period. One of its most famous lines was uttered by Mr. McGuire (Walter Brooke), who gives Ben, a 21-year-old recent college grad played by Dustin Hoffman, some friendly business advice: “There's a great future in plastics.” He was right, of course. In 1976, the global production of plastics was around 50 million metric tons. By 2002, that number had quadrupled. Today, more than 311 metric tons of plastics are produced worldwide. In 2013, plastic wholesaling generated $55 billion in the U.S., which is behind only China in total PVC production.
But plastic’s future would not be all bright. Just a few years after The Graduate was released, VC health concern had reached critical mass in the U.S. Nancy Beach, who was coordinating the EPA’s vinyl chloride efforts at the time, revealed that exposure to the toxin wasn’t limited to factory workers. In a private session organized by the National Cancer Institute and attended by representatives from 10 federal agencies, including the Food and Drug Administration (FDA), Occupational Safety and Health Administration (OSHA), CDC and the National Institutes of Health, Beach revealed that some 6 percent of the VC used during PVC production was escaping into the outside air. “It sounds small,” she said, “but if one considers that the annual production of PVC in the U.S. is well over 5 billion pounds a 6 percent loss figure is on the order of 250 million pounds, which is somehow getting out of the workplace.”
By the summer of 1974, the FDA, EPA and Consumer Product Safety Commission moved to prohibit the use of VC in bottles and other consumer goods. In October, EPA Administrator Russell Train announced new air emissions standards for vinyl chloride. The announcement would have far-reaching implications: By framing the VC issue within the larger goal of regulating the hundreds of chemicals that enter the marketplace every year, Train helped pave the way for the passage of the TSCA:
"For the past five years, an estimated 600 new chemicals a year have been introduced into U.S. commerce. These chemicals have been sold without any systematic, advanced assessment of their potential impact on human health. As we have learned through our experience, materials such as vinyl chloride, polychlorinated biphenyls (PCBs), asbestos, nitrosamines and several others, we often do not discover how harmful a compound can be until it has become a commonplace item in our everyday life."
Two years after Train’s announcement—and after significant negotiation between the government and industry—the TSCA was finally signed into law by President Ford on Oct. 11, 1976, authorizing the EPA to test and regulate new and existing chemicals. In a statement accompanying the signing of the bill, Ford said, “I believe this legislation may be one of the most important pieces of environmental legislation that has been enacted by the Congress.” He may have been right, but important does not equal effective.
Fixing "Fundamental Weaknesses"
A large part of the problem with the TSCA is its fundamentally Sisyphean nature. In 1994, former EPA Assistant Administrator Lynn Goldman testified to Congress, saying, “Our available tools for gathering testing data about these chemicals are cumbersome.” Later, she explained that under the provisions of the TSCA, “It’s almost as if ... we have to, first, prove that chemicals are risky before we can have the testing done to show whether or not the chemicals are risky.” Since the TSCA was enacted, some 62,000 chemicals have never been tested by the EPA because they were grandfathered in and remain on the market.
In 2009, Michael Wilson and Megan Schwarzman, environmental health scientists at UC Berkeley, published a damning analysis of U.S. chemical policy, identifying “fundamental weaknesses” in the way the government protects Americans from toxic substances—weaknesses that not only leave the public unprotected, but hamstring the development of a chemical marketplace that is less toxic and more sustainable. “These policies have largely failed to adequately protect public health or the environment or motivate investment in or scientific exploration of cleaner chemical technologies,” they wrote in the paper, which was published in Environmental Health Perspectives, a peer-reviewed journal. “On this trajectory,” they warned, “the United States will face growing health, environmental and economic problems related to chemical exposures and pollution.”
Two bills, a House and Senate bill, which passed their respective chambers last year, represent Congress’ first serious attempt to “reauthorize and modernize” the TSCA. The Senate bill, S. 697 (the Frank R. Lautenberg Chemical Safety for the 21st Century Act), has been hailed as the result of bipartisan compromise on Capitol Hill led by Sen. Frank Lautenberg (D-NJ) and Sen. David Vitter (R-LA), who co-sponsored a bill in May 2013. A month later, Lautenberg died. Sen. Tom Udall (D-NM) picked up the reins and worked with Vitter—an ally of the chemical companies—to improve the bill, which eventually secured enough support in the Senate to be filibuster-proof. Now dubbed the “Udall-Vitter chemical safety bill,” it passed on Dec. 17 by unanimous consent.
New York Times columnist Joe Nocera sees a rare quality in the Udall-Vitter bill: “In this era of polarized politics,” he writes, “it is something of a miracle.” He said Udall told him that the bill stood as “an example of good, old-fashioned legislating.” Nocera also relayed the opinion of Dominique Browning, a co-founder of the grassroots green group known as Moms Clean Air Force:
"Browning, an old friend of mine, describes herself as an environmental pragmatist. She concluded that whatever the flaws in the bill, it was a vast improvement over the status quo—a status quo in which the Environmental Protection Agency can’t even regulate formaldehyde. She and her brain trust decided that their 570,000-member group would work to improve the bill instead of oppose it. This is also the position taken by the ever-pragmatic Fred Krupp of the Environmental Defense Fund, with which Moms Clean Air Force is affiliated."
The House bill, H.R. 2576 (TSCA Modernization Act), was introduced in May 2015 by Rep. John Shimkus (R-IL-15) and passed in June. The next step is for the bills to be assessed in a conference committee to reconcile the two versions. (Richard Denison, lead senior scientist at the nonprofit Environmental Defense Fund has published an excellent side-by-side comparison of how the two bills address 12 of TSCA’s key limitations).
As the first major overhaul of the 40-year-old TSCA, the bills have several laudable goals and fix glaring omissions in the old law. For example, the TSCA gives no special consideration to segments of the population that may be more susceptible to toxins, such as infants, children, pregnant women, workers and the elderly. This is a striking oversight. Less than 20 percent of HPV chemicals have been studied for their ability to impact child development. The Senate bill addresses this omission, expressly requiring protections for these vulnerable groups. Furthermore, the TSCA gives the EPA the authority, but regrettably no mandate, to restrict chemicals deemed to present an “unreasonable risk.” The new legislation closes this breach by requiring restrictions on such substances.
Another target of reform is the “safety standard.” Under the TSCA, a substance of unreasonable risk requires the EPA to conduct a cost-benefit analysis, an unwieldy requirement that is ultimately not necessary—if the bottom line is protecting public health. Both bills address this by prohibiting the EPA from considering costs and other non-risk factors in making safety determinations, eliminating an onerous requirement of the TSCA that Denison characterized as a “paralyzing regulatory hurdle.”
The final bill will likely meet one of the threshold principles for the Obama administration: that the safety standard is a “health only” standard and not a “cost-benefit” standard. In their analysis, Wilson and Schwarzman note three key “gaps” caused by the weaknesses in the TSCA:
- Data gap: “Producers are not required to investigate and disclose sufficient information on chemicals' hazard traits to government, businesses that use chemicals or the public.”
- Safety gap: “Government lacks the legal tools it needs to efficiently identify, prioritize and take action to mitigate the potential health and environmental effects of hazardous chemicals.”
- Technology gap: “Industry and government have invested only marginally in green chemistry research, development and education.”
The bills address these gaps to varying degrees. Regarding the data gap, the new legislation mandates a greater level of transparency, requiring an upfront justification from companies for all or most new claims. Regarding the safety gap, the bills, as stated earlier, prohibit the EPA from considering costs in risk evaluations. Regarding the technology gap, the Senate bill mandates that, no later than two years after the bill’s enactment, an Interagency Working Group—comprised of representative from several agencies, including the U.S. Department of Agriculture, EPA, National Institutes of Health and the National Science Foundation—must submit “a summary of federally funded sustainable chemistry research, development, demonstration, technology transfer, commercialization, education and training activities.”
Whether or not these changes survive the final combined version of the bill remains to be seen.
Question of Authorship
While there is much to like to about the reform bills, particularly the protection they require for vulnerable segments of the population, they have drawn strong opposition. Safer Chemicals, Healthy Families, a 450-member coalition dedicated to TSCA reform that counts as its members a number of leading environmental and public health advocacy groups, such as the Natural Resources Defense Council, Earthjustice, Physicians for Social Responsibility, Planned Parenthood Federation of America and the Breast Cancer Fund, opposes the part of the reform bills that gives the EPA the ability to declare substances “low-priority” based on a finding that the chemical is “likely to meet” the safety standard, thereby leaving them off the official assessment table. That’s a loophole that, according Safer Chemicals, Healthy Families’ National Campaign Director Andy Igrejas, lets industry off the hook:
"A low-priority designation is a new form of pro-active non-assessment. It is effectively a hall pass for the chemical; a declaration that EPA will not review the chemical so it is therefore free to roam the economy and potentially your home without any restrictions. All on the back of 'likely to.' This distinction, which confers many of the benefits of being declared 'safe' but without a thorough safety evaluation, is likely to be coveted by chemical companies."
Is it possible that the low-priority designation isn’t just coveted by chemical companies, but was actually written by them? Hearst Newspapers obtained a copy of the draft bill in the form of a Microsoft Word document, which has led to questions concerning the bill’s authorship. According to the San Francisco Chronicle, a Hearst paper, accessing the document’s “advanced properties” revealed that the company of origin was none other than the American Chemistry Council, the chemical industry’s powerful lobbying group. Ken Cook, president of the non-profit Environmental Working Group, was quick to denounce the legislative process behind chemicals reform. “We’re apparently at the point in the minds of some people in the Congress that laws intended to regulate polluters are now written by the polluters themselves,” he said.
Indeed, the chemical industry is so far supportive of the reform. "Updating the Toxic Substances Control Act is critical for our industry, one that creates the building blocks for 96 percent of all manufactured goods, playing a fundamental role in every facet of national commerce and the U.S. economy," the American Chemistry Council said in a statement. According to the trade group, the Senate bill balances the needs of the public to be informed about chemicals in the marketplace without getting in the way of the industry’s job to make the kinds of chemicals—toxic though they might be—that manufacturers need.
Igrejas also notes that the Senate bill “weakens EPA’s ability to intercept imported products, like most of the toys under your Christmas tree, when they contain a known toxic chemical.” Following the March 2015 hearing by the Senate environment committee, he wrote, “The overwhelming conclusion to any but the most partisan observer was that the bill—though improved over last year’s version—needs additional work before it represents true progress for public health and gathers the broader support needed to become law.”
States Rights vs. Federal Oversight
But perhaps the most dramatic change that would be ushered in by the new legislation as it is currently written regards the role of states, which would have diminished control. The new law threatens to undo state-led efforts to protect citizens in light of failures at the federal level. “The toxics tug-of-war in state houses,” Ronnie Greene of the Center for Public Integrity said, “is direct fallout from the muddled environmental politicking of Washington, DC.” Notably, the new law would block states from taking direct action on potentially hazardous chemicals while the EPA makes its own assessments, which could delay rolling out necessary steps to protect public and environmental health, possibly for years.
In a letter to Sen. Barbara Boxer (D-CA), the ranking member of the Senate Committee on Environment and Public Works, California State Attorney General Kamala Harris said it “is deeply troubling given the enormous time lag certain to occur between the beginning of an EPA assessment and the effective date of any federal safety rule.” The federal time lag is truly extraordinary. In 2010, for example, the EPA added 16 new cancer-causing chemicals to the list of toxic substances that must be reported to the Toxics Release Inventory, which allows the American public to know what kinds of chemicals might be polluting their communities. It was the first time chemicals had been added to the list in over a decade.
Harris wasn’t the only state attorney general to come out against the Senate bill. A week after it was introduced, the state attorneys general of Iowa, Maine, Maryland, New York, Oregon and Washington sent a similar letter to Sen. Boxer and Sen. James Inhofe (R-OK), the environment committee chairman. They write:
"We oppose S. 697’s broadly expanded limitations on the ability of states to take appropriate action under state laws to protect against … risks posed by chemicals and chemical mixtures … In contrast to the existing law, S. 697 would prevent states from adopting new laws or regulations or taking other administrative action, 'prohibiting or restricting the manufacture, processing, distribution in commerce or use' of a chemical substance deemed by the U.S. Environmental Protection Agency to be a 'high-priority' for federal review even before any federal restrictions have been established. As a result, a void would be created where states would be prevented from acting to protect their citizens and the environment from those chemicals even though federal restrictions may not be in place for many years. S. 697 also eliminates two key provisions in the existing law that preserve state authority to protect against dangerous chemicals. One is the provision that provides for 'co-enforcement'—allowing states to adopt and enforce state restrictions that are identical to federal restrictions in order to provide for additional enforcement of the law. The second is the provision that allows states to ban in-state use of dangerous chemicals."
Last month, Sharon Lerner, who covers the environment for The Intercept, wrote an article focusing on the effect the TSCA reform bill would have on the work that is happening on the state level. “If the worst provisions from both bills wind up in the final law,” she writes, “the new legislation will gut laws that have put Oregon, California, Maine, Vermont, Minnesota and Washington state at the forefront of chemical regulation.”
Lerner told me that there are almost 20,000 chemicals currently on the marketplace whose identities remain unknown because they're protected by law. “They're considered confidential to business and you can't check the safety of something if you don't know the identity of it,” she said. Under the new legislation, she added, “none of that will change. I think it's really important to remember that.”
But there is still time to make the final bill that reaches the president’s desk one that will please more of the stakeholders. But ultimately, legislators mustn’t lose sight of the bill’s basic goal: to protect people, wildlife and the environment from dangerous substances. “Luckily, it is not too late,” Igrejas said in a statement. “When Congress reconciles the House and Senate versions, they should focus on the fundamentals of reform and simply empower and direct EPA to identify and restrict toxic chemicals.” And they shouldn’t let corporate interests make the sausage.
Plastics and other toxic substances have arguably helped shape the modern world in many positive ways. But the rules governing their use and the way those rules have been written, are problematic, to say the least. As Dustin Hoffman remarked in The Graduate, “The rules don't make any sense to me. They're being made up by all the wrong people.”
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Speaking during a conference in Washington, DC in June, Derrick Morgan, senior vice president for federal and regulatory affairs at the American Fuel & Petrochemical Manufacturers (AFPM), touted "model legislation" that states across the nation have passed in recent months.
AFPM represents a number of major fossil fuel giants, including Chevron, Koch Industries and ExxonMobil.
"We've seen a lot of success at the state level, particularly starting with Oklahoma in 2017," said Morgan, citing Dakota Access Pipeline protests as the motivation behind the aggressive lobbying effort. "We're up to nine states that have passed laws that are substantially close to the model policy that you have in your packet."
Big Oil is now using its political power to try and criminalize protests of oil & gas infrastructure.— Friends of the Earth (@foe_us) August 19, 2019
"This legislation has potential to punish public participation and mischaracterize advocacy protected by the First Amendment."https://t.co/bmiHjONEhy
The audio recording comes just months after Texas Gov. Greg Abbott signed into law legislation that would punish anti-pipeline demonstrators with up to 10 years in prison, a move environmentalists condemned as a flagrant attack on free expression.
"Big Oil is hijacking our legislative system," Dallas Goldtooth of the Indigenous Environmental Network said after the Texas Senate passed the bill in May.
As The Intercept's Lee Fang reported Monday, the model legislation Morgan cited in his remarks "has been introduced in various forms in 22 states and passed in ... Texas, Louisiana, Oklahoma, Tennessee, Missouri, Indiana, Iowa, South Dakota, and North Dakota."
"The AFPM lobbyist also boasted that the template legislation has enjoyed bipartisan support," according to Fang. "In Louisiana, Democratic Gov. John Bel Edwards signed the version of the bill there, which is being challenged by the Center for Constitutional Rights. Even in Illinois, Morgan noted, 'We almost got that across the finish line in a very Democratic-dominated legislature.' The bill did not pass as it got pushed aside over time constraints at the end of the legislative session."
Many of the state bills restricting the right to protest have been "drafted by companies and passed through groups like ALEC, the secretive group of corporate lobbyists trying to rewrite state laws to benefit corporations over people." @greenpeaceusa https://t.co/ZxpTjWdrwT— Stand Up To ALEC (@StandUpToALEC) May 6, 2019
Reposted with permission from our media associate Common Dreams.