Weak Laws and Weaker Governance Keep Toxic Chemicals on the Market

We recently wrote about the broad public support for a petition to ban a class of toxic organohalogen flame retardants from consumer products. “Wait a minute,” you might be thinking. “Doesn’t the government already regulate chemicals for safety?” The fact of the matter is that we know certain chemicals are toxic and yet they are still in use.  Flame retardants, which migrate out of common household items leading to widespread exposures, are a prime example.

Although the federal Toxic Substances Control Act (TSCA) has been on the books for 40 years, in practice it has not lead to meaningful regulation of chemicals that pose serious health risks, nor has it lead to a robust program of safety testing for chemicals. In fact, the EPA has only managed to ban five chemicals in the past four decades, and of the 80,000 chemicals on the U.S. market today, only about 200 have been tested for safety.

The fact that the EPA has not required more safety testing or imposed more restrictions on the use of chemicals is partly a function of weaknesses in the TSCA. For example, there’s a major Catch-22 embedded in the law: The EPA cannot require manufacturers to conduct health and safety testing unless the agency first finds that the chemical in question may present an unreasonable risk, a finding that may be hard to make without the testing the EPA is seeking. But even if the EPA could make the finding, the TSCA requires the agency to go through a lengthy and complex process to demand safety testing.

For EPA to restrict the use of chemicals under TSCA is even more onerous. The EPA must consider criteria that give as much (or more) priority to industry as to protecting health and the environment. For example, the EPA cannot adopt any restriction on the sale of a chemical without going through a cost-benefit analysis and concluding that the proposed restriction is the “least burdensome” way to bring the risk down to “reasonable” levels.  

Safer Chemicals, Healthy Families, a coalition that includes Earthjustice and other environmental advocates, medical and public health associations, labor unions and parent groups, has been pressing Congress to reform TSCA for many years. More recently, the chemical industry itself has started advocating for TSCA reform because it wants a federal law that would “preempt” state laws limiting the use of toxic chemicals that have been adopted in large part because the TSCA has failed to protect the public. The chemical industry is also hoping the EPA will conduct cursory risk assessments and find their products to be “safe.”

With widespread agreement that some version of TSCA reform is necessary, the House and Senate recently passed two very different bills that aim to reform the law. Safer Chemicals, Health Families feels neither version provides the EPA with the tools to truly protect human health and the environment. Tellingly, the chemical industry supports both bills. Many predict that a final bill will be ironed out by the end of 2016.

Even if the revised law contains stronger protections for public health, enactment is only part of the solution. As imperfect as the TSCA is, some of the blame for how ineffective it has been in protecting the public from toxic chemicals lies with the EPA. The EPA has avoided using the authority that the TSCA gives it. Implementation and enforcement are where the ultimate success or failure of the reformed TSCA will lie. If the EPA conducts incomplete risk assessments of toxic chemicals and declares them “safe,” TSCA will have been a colossal failure. 

Mariana Lo contributed research to this post.

This brings us back to the subject of flame retardants. The EPA recently began the process of conducting risk assessments for four “clusters” of flame retardant chemicals. In theory, these initial assessments are the first step toward regulating these chemicals. Earthjustice worked with the Natural Resources Defense Council (NRDC) and the Washington Toxics Coalition to analyze the EPA’s work. We found serious flaws in the EPA’s analysis. The agency overlooked critical exposure pathways, failed to document its review of all the relevant scientific literature, ignored cumulative exposures to multiple chemicals and hardly considered effects on industrial workers, children and other vulnerable populations. Veena Singla, a staff scientist at the NRDC, recently wrote a blog about the consequences of the EPA’s failure to look at all the ways a person could be exposed to chemicals in these flame retardant assessments.

We were also deeply troubled to see that the EPA allowed flame retardant manufacturers to hide key information from the public under the guise of “confidential business information (CBI).” The concealed information includes health and safety studies, though the TSCA expressly forbids companies from withholding that information as CBI. This problem is not unique to flame retardants. A recent article in The Intercept details how the EPA has been hampered by industry secrecy in its work to assess the toxicity of chemicals to replace the known carcinogen C8, also known as PFOA. PFOA is a chemical manufactured by 3M and later by DuPont that has poisoned drinking water sources across the country.

The shortcomings of the EPA’s flame retardant assessments can’t be blamed on TSCA, though the law is far from perfect. Much of the problem is that EPA has implemented TSCA in a way that prioritizes the interests of the chemical industry over those of the public. Even if we get a better version of TSCA on the books, we will need to keep pressure on the EPA to ensure that implementation of the reformed TSCA doesn’t mirror the disastrous implementation of the existing TSCA.