This week marks the first birthday of the Frank R. Lautenberg Chemicals Safety for the 21st Century Act, which was signed into law by President Obama on June 22, 2016, after passing the Senate and House with overwhelming bipartisan support.
The Lautenberg Act significantly overhauled and substantially improved the Toxic Substances Control Act (TSCA), the core provisions of which had never been amended since their adoption in 1976. Among the enhancements are new provisions that:
- mandate safety reviews for chemicals in active commerce;
- require safety findings for new chemicals before they are allowed on the market;
- replace TSCA’s burdensome safety standard — which prevented the Environmental Protection Agency (EPA) even from banning asbestos — with a pure, health-based safety standard;
- explicitly require protection of vulnerable populations like children, pregnant women and workers;
- give EPA enhanced authority to require testing of both new and existing chemicals;
- make more information about chemicals available, by limiting companies’ ability to claim information as confidential, and by giving states and health and environmental professionals access to confidential information they need to do their jobs; and
- retain a significant role for states in assuring chemical safety, while strengthening the federal role.
Passage of the Lautenberg Act was made possible by the coming-together of members of both parties and a broad spectrum of stakeholders around two facts: the old law wasn’t working for anyone, and a stronger federal chemicals management system was needed to restore lost confidence among the public and in the marketplace over the safety of chemicals.
At the one-year mark, Environmental Defense Fund (EDF) remains confident that the law is strong and can and will ultimately deliver on its promises. At the same time, its effective implementation in the near term is threatened on numerous fronts, unfolding as it is in one of the most anti-environmental and anti-regulatory climates this nation has faced in a long time.
To be clear, aspects of the bipartisan and broad stakeholder support for the new law remain and are evident in spots: Thanks to herculean efforts of career staff, along with calls from members of both parties for EPA to meet its deadlines, EPA complied with most of the early milestones set forth in the law. The same appears likely for the next set of deadlines, some of which fall later this week. To date, EPA’s reviews of and actions on new chemicals have been undertaken in a manner that adheres to the law’s new requirements, and appropriate additional resources are allowing the agency to eliminate the temporary backlog that resulted from the new requirements becoming effective immediately upon enactment.
This news pales, however, in light of the significant threats that implementation of the new law faces. Among them:
- EPA’s BUDGET: The President’s proposed budget would decimate EPA’s funding and staffing, including in areas critical for effective TSCA implementation. Despite preserving funding for the TSCA office, core agency functions such as enforcement and information management are on the chopping block. Scientific initiatives on which the TSCA office heavily relies are also proposed to be cut to the bone. The Office of Research and Development would be cut in half. That office includes:
- the Integrated Risk Information System (IRIS), which conducts hazard characterizations of chemicals subject to risk evaluations under TSCA, including more than half of the first 10 chemicals slated for such reviews; and
- EPA’s ToxCast and related initiatives under the agency’s “Chemical Safety for Sustainability” research program, which has been shepherding the development of high-throughput testing and other predictive toxicology methods and computational tools that the Lautenberg Act calls on EPA to look to utilize in filling the major data gaps that exist for many chemicals regulated under TSCA.
- ANTI-REGULATORY EXECUTIVE ORDERS AND PENDING LEGISLATION: President Trump has signed several executive orders aimed at severely constraining EPA and other federal agencies from carrying out their missions to protect human health and the environment. And a variety of bills have passed the House of Representatives and are pending in the Senate that would impose even more severe constraints, including by limiting the scientific information EPA can use in developing regulations and the independent scientific advice it can obtain. One of these bills – the Regulatory Accountability Act – would, among other problems, impose across the entire federal government some of the worst flaws in the old TSCA that were removed by the Lautenberg Act; see here and here.
- INDUSTRY EFFORTS TO ROLL BACK EARLY TSCA ACTIONS: The Lautenberg Act authorized EPA to take action to address high risks it had identified in previous chemical risk assessments, including certain uses of trichloroethylene (TCE), methylene chloride (MC) and N-methylpyrrolidone (NMP). EPA proposed such rules in December and January, but much of the chemical industry has sought to derail, delay or dilute these rules, after failing to halt their proposal. The fate of these rules is uncertain at this point, despite compelling ongoing evidence of the need for them.
Many in the industry are also urging this Administration to repeal, delay or weaken a modest information-gathering rule on nanoscale materials that was over a decade in the making and was repeatedly scaled back in scope based on the industry’s concerns. In response, EPA has already granted an initial delay, and the rule’s ultimate fate is uncertain.
The law’s allowance for EPA to take early action was widely seen as an opportunity to demonstrate that the new law was working, which now may be lost.
- UNDUE INDUSTRY INFLUENCE OVER IMPLEMENTATION: A senior chemical industry official was recently appointed as principal deputy in EPA’s TSCA office, where, among other things, she has been active in drafting the final “framework” rules under the Lautenberg Act that will set forth the key procedures EPA will use to prioritize and evaluate the risks of chemicals under TSCA. These rules, which are in their final stages and could be issued as soon as this week, will directly affect the financial interests of companies represented by her previous employer, the American Chemistry Council.
Each of these factors, which will heavily influence the early implementation of the Lautenberg Act, put at great risk the careful balance struck by the new law. If that balance is lost to short-term priorities of the new Administration and the chemical industry, the common ground so many of us fought for and found to support last year’s historic passage of the Lautenberg Act will quickly dissipate, and the conditions that led the industry to want reform in the first place – retail regulation and state and local action in response to an ineffective federal system – will pick up even greater steam. The crisis in confidence will remain unabated.
It was no accident that the Lautenberg Act built in many safeguards against inaction or unsound decisions, including deadlines, mandatory duties, public comment, mandatory documentation of EPA decision-making and judicial review. All are meant to drive transparency and accountability. EDF is prepared to use all of these tools to fight back against efforts to undermine scientifically robust and legally sound implementation of the law.
If this post seems too pessimistic, I hope I am wrong. Even if I am right, I believe what has been created by the Lautenberg Act is durable and will survive the near-term threats I’ve noted, leading in the long run to a stronger federal system that better ensures the safety of chemicals on or entering the market. Meanwhile, those of us who want to see health-protective implementation of the law certainly have our work cut out for us.
Richard Denison, Ph.D., is a Lead Senior Scientist.
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