Battle Lines Are Drawn as Congress Reforms the 40-Year-Old Toxic Substances Control Act

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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.