by Katie Tracy, J.D.
June 22 marks the two-year anniversary of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (colloquially referred to as TSCA reform or new TSCA). The 2016 law provided some hope that the U.S. Environmental Protection Agency (EPA) would finally address the potential risks from tens of thousands of untested and unregulated chemicals common in our households and hygiene products, our food and drinking water, our air, and our workplaces. Unfortunately, under President Trump and Scott Pruitt’s leadership, EPA has undermined the law.
Under Pruitt, EPA finalized controversial and legally indefensible framework rules for prioritizing chemicals for risk evaluation and for conducting those evaluations. Environmental and public health advocates have sued the agency over the framework rules because they allow numerous unreasonable health and environmental risks to continue unabated, in violation of the statute. As EPA continues with TSCA implementation under its flawed framework rules pending the outcome of the litigation, the hope the reforms once gave is on hold.
On June 1, EPA released problem formulation documents refining the scope of the risk evaluations for the first 10 chemicals the agency selected to assess under the new law. EPA selected these chemicals because of the significant and unreasonable risks they may pose to consumers, children, workers, and the environment. However, under EPA’s contested framework rules, the agency is now cooking the books by excluding many use and disposal activities from its risk evaluations. This is problematic because it will result in an underestimate of the risks, upon which the agency will later rely in deciding whether and to what extent to impose limits on a chemical’s manufacture, production, distribution, use, or disposal. This is a huge victory for the chemical industry and a major blow to consumers and workers.
A prime example of the problem is the agency’s planned evaluations of carbon tetrachloride and asbestos. Both chemicals were once much more widespread than they are today, but due to their health risks, EPA and other agencies previously limited their use and even banned some uses altogether. Yet both chemicals persist in industrial applications, consumer products, and the environment. They can also have severe health effects.
Carbon tetrachloride can cause an enlarged liver, damage the kidneys, and cause wastes to build up in the bloodstream even at low levels of exposure over a brief time. Acute exposure to high levels of the chemical can cause harm to the nervous system and brain function, and in severe cases, can lead to coma or death. EPA and the International Agency for Research on Cancer (IARC) already consider it a probable human carcinogen, and the National Toxicology Program (NTP) classifies it as reasonably anticipated to be a carcinogen.
Asbestos exposure can cause mesothelioma, an incurable type of cancer that occurs when tumors form on the lining of vital organs, typically the lungs. Asbestos is also associated with asbestosis, a disease that causes severe and irreversible lung inflammation and scarring, which results in a host of breathing complications and can increase one’s risk of developing mesothelioma. The risk of asbestos exposure isn’t limited to older homes, schools, and industrial settings. In one recent case, Claire’s recalled several cosmetics after U.S. PIRG announced it found asbestos in the chain’s makeup products. Still, the risk is highest for workers exposed on the job, especially those employed in the shipbuilding, construction, and automobile industries.
For EPA to do its job of protecting the public from harm due to toxic chemical exposures, the agency needs to consider all exposures and then determine the risk of exposure before deciding what action, if any, is necessary to reduce or eliminate that risk. Contrary to this logical approach, however, EPA has chosen to ignore certain ongoing uses and disposals of chemical substances from its risk evaluations under new TSCA, starting with the first 10 chemicals it has chosen to assess.
For example, according to an Environmental Defense Fund analysis, “EPA will ignore more than 68 million pounds of seven of these 10 chemicals released to the nation’s air, water, and land every year.” This will lead to an underestimate of the actual risks these chemicals pose, and as a result, the risk management approach the agency adopts will almost certainly fail to protect people and the environment.
Under Trump and Pruitt’s EPA, there’s little chance the agency will take a step back and correct course on its own. Given the strength of the legal arguments against the framework rules, there’s hope that the reviewing court will ultimately require the agency to mend its ways and act to protect the public and environment as it is statutorily mandated to do.
In the meantime, advocates and members of the public are making headway by addressing toxic chemicals through market-based campaigns targeting popular retailers. For example, Safer Chemicals, Healthy Families’ “Mind the Store” campaign has recently secured promises from Lowe’s, Sherwin Williams, and Home Depot to phase out paint strippers containing methylene chloride and N-methylpyrrolidone (NMP) (two of the first 10 chemicals under review at EPA) from store shelves. Follow the campaign and get involved here.
Katie Tracy, JD, is a workers’ rights policy analyst with the Center for Progressive Reform. She received her law degree from American University Washington College in 2012. She was on the staff of the Administrative Law Review and the Sustainable Development Law & Policy brief.