Reprinted by permission from The Environmental Forum®, May/June 2021. MAY/ JUNE 2021 | 55
Copyright © 2021, Environmental Law Institute®, Washington, D.C. www.eli.org.
[NOTE: This post is my contribution to a debate on TSCA implementation published by ELI. I wrote this piece, which ELI titled “Reversing New Chemicals Program a Priority,” in late March.]
As with so much else these past four years, implementation of the 2016 reforms to the Toxic Substances Control Act was not normal.
Despite bipartisan support for TSCA’s overhaul and the chemical industry’s acknowledgment that it needed a stronger federal system to restore public confidence in its products, this progress evaporated virtually overnight with the ascendance of the most anti-environmental and anti-public health administration in our lifetimes.
Nowhere was this more apparent than in the Trump EPA’s systematic undermining of the new TSCA’s enhancements of safety reviews for the hundreds of new chemicals entering commerce each year. The chemical industry, its army of law firms, and its political plants inside EPA went for broke.
EPA’s initial lawful, health-protective implementation led, as expected, to many more new chemicals being subjected to orders and required testing — which the law requires when a new chemical is found to present concerns or lack adequate safety information. But industry used its clout with then Administrator Scott Pruitt to implement policy changes that flouted the law and rendered such orders and testing rare.
In 2019, EPA’s “Working Approach” restricted safety reviews to companies’ intended uses of new chemicals. That review excluded reasonably foreseen uses TSCA explicitly requires be concurrently evaluated. While the agency has sometimes required companies to notify EPA before starting a reasonably foreseen use, any ensuing review was separate from the first review and hence did not consider the combined impact. Moreover, EPA so narrowly defined what it would consider reasonably foreseen that the agency must effectively prove such a use is highly likely to occur.
These changes serve to break up the review of a new chemical into small pieces, increasing the likelihood it will be deemed safe — but frustrating Congress’s intent that EPA conduct comprehensive reviews that anticipate the multiple ways chemicals can be used and cause exposure. The changes allowed EPA to approve — without any conditions or testing — nearly three quarters of the 600-plus chemicals subsequently reviewed.
EPA instituted other measures to gut protections for workers, who are on the front lines of new chemical exposures. In 2017, the industry’s New Chemicals Coalition demanded that EPA stop imposing workplace restrictions on new chemicals even when significant worker risks were identified, and instead simply forward the concern to the resource- and authority-strapped Occupational Safety and Health Administration.
I thought it unlikely this extreme position would gain traction at EPA. After all, TSCA expressly identifies workers as facing greater risk than the public, requiring the agency to ensure they are protected from chemical risks. Instead, the Trump EPA more than granted industry’s wish: it dismissed any worker risk the agency identified by asserting workers will protect themselves by donning personal protective equipment, despite no requirement their employers even provide such equipment. No pesky referral to OSHA either.
This approach — which EPA also adopted in all 10 of its risk evaluations of existing chemicals — became rampant for new substances. Of the 400-plus new chemicals cleared for unfettered market access under the Trump EPA’s policies, the agency found nearly 80 percent posed risks to workers – but cleared them anyway by asserting PPE use. Our close examination of several dozen such decisions revealed that the risks EPA dismissed — which should have triggered issuance of an order — exceeded its own benchmarks by 32-fold, on average.
Meanwhile, EPA approval of “low-volume exemptions” proliferated, providing companies with a path of even less resistance for getting new chemicals approved. By agreeing to a production limit, companies get an expedited 30-day review. Since the new policies came in, EPA granted nearly 600 LVEs; only 4 were denied, with 48 withdrawn. LVEs have been used in particular for PFAS, highly persistent and often toxic chemicals that contaminate most Americans’ blood. Over the past year, EPA received several dozen LVEs for PFAS. While claiming it was acting aggressively to rein in PFAS, the agency approved two thirds of these, with decisions on the remainder pending.
Finally, despite some efforts to comply with its own regulations regarding public access to information on new chemicals, EPA scaled back transparency in key respects. The agency stopped informing the public when its initial review of a new chemical raised concerns. EPA recently stopped providing public access to new chemical orders it has issued. Most recently, our FOIA request turned up extensive evidence of collusion on new chemicals between EPA political appointees and industry.
Clearly the Biden EPA is inheriting a hot mess. It should immediately rescind the illegal Working Approach; issue binding orders whenever worker risks are identified; halt approval of new PFAS and abuse of the LVE process; and commit to full transparency by providing timely access to robust information on new chemicals and agency decisions concerning them.
TSCA reform yielded long-needed improvements in this core component of our nation’s chemical safety system. EPA must make reversing the dismal failures of the past four years a top priority.
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