TSCA: The 40-Year Old Virgin
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Will EPA ever regulate a chemical under the Toxic Substances Control Act (TSCA)? Judging solely on the history of the law, it is hard to be optimistic. Since 1976 when the law was first enacted, EPA has adopted partial restrictions on less than a dozen of 62,000 chemicals. The Agency’s greatest effort and greatest failure was a 10-year rulemaking process to regulate asbestos which was overturned by a federal appeals court. That was in 1991 (when Nirvana’s “Smells Like Teen Spirit” was a new sensation), and EPA did not propose another restriction on an existing chemical under TSCA for the next 25 years.
Now, for the first time since 1991, EPA is on the cusp of banning specific uses of three chemicals—trichloroethylene (TCE), methylene chloride (MC) and n-methylpyrollidone (NMP)—all highly toxic solvents. The health basis for banning these uses is strong. TCE causes a host of health harms including liver and kidney toxicity, reproductive toxicity and multiple types of cancer. The solvents MC and NMP, like TCE are also reproductive toxicants, and cause both acute and chronic neurological impairments that include headaches, nausea, dizziness, fatigue, loss of muscle coordination, loss of short-term memory, depression, anxiety, and irritability. Effects can be both acute (at least 56 people have been killed by methylene chloride since 1980) and long-lasting. All these toxic solvents also pass easily from mother’s circulation to the fetal circulation, as well as into breast milk. The Obama Administration proposed the bans in three separate rulemakings—one in December and two in January (two for TCE, see here and here; one for MC and NMP). NRDC and our coalition partners Safer Chemicals Healthy Families submitted comments in support of the first proposed ban which you can read here. We’ll be submitting joint comments in support of the next two bans as well.
The Obama Administration proposed each of these bans under the authority of the newly revised TSCA, signed into law by President Obama on June 22nd, 2016. The revised law, referred to as the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA) specifically authorized EPA to propose regulations for the three chemicals based upon risk assessments the Agency had already completed. The law also established a set of strict deadlines for EPA to take specific actions to prioritize, evaluate and regulate chemicals. (The “ground rules” for how EPA will prioritize and evaluate chemicals are due to be finalized by June 22nd. See the blog with my colleague Dr. Veena Singla here). If EPA determines, based on its evaluation, that a chemical “poses an unreasonable risk of injury to health or the environment” from one or more “conditions of use,” then EPA must act to eliminate the unreasonable risk. The re-write of the law raised hopes that the law might finally be used to restrict dangerous chemicals to protect the public. Then Donald Trump became President.
Now what? The EPA is currently under the control of an Administrator, Scott Pruitt (#pollutingpruitt), who has made a career of taking direction from polluters and suing the Agency to block or overturn many of its health-protective actions. He was handpicked by a President who has touted asbestos as “100 percent safe, once applied” (this ignores the unsafe exposures that come from mining, and then from aging, renovations, removal, or disposal); and who, as one of his first acts as President-elect, appointed the head of Dow Chemical—a manufacturer of TCE and MC (and the neurotoxic pesticide chlorpyrifos)—as the Chair of his Manufacturing Council. The chemical industry has already received a 30-day extension on the comment period for the TCE rule. Now the industry has filed another extension request for both the TCE and MC/NMP rules—this time for four months! The extension is ostensibly so the industry can redo a study that it plans (sorry, believes) will undercut one of the key studies that links exposure to TCE to fetal cardiac defects. The original industry-sponsored study ran into lab problems and needed to be scrapped. The chemical industry is basically saying “my lab rat ate my homework and I need more time.” The basis for the extension of the MC/NMP rule is, well, they don’t really have any basis for that. Safer Chemicals Healthy Families has filed comments opposing the extension request. But the comment period extensions are just one part of the industry’s Delay Game strategy. Industry was previously pressuring the EPA not to issue the proposed rulemakings, claiming that the Agency has not met the legal requirements under the new law. Part of the industry’s argument is that, now that TCE, MC and NMP have been included in EPA’s list of the first 10 chemicals it plans to evaluate and regulate, the Agency should not move forward with the current proposed restrictions on particular uses.
That is clearly not what Congress intended however, and the delay is unnecessary since EPA has already determined that these specific uses pose an unreasonable risk. If EPA does fulfill its mandate and adopts the three toxic solvent protections, it will be the first glimmer of hope in the sad history of this impotent law. But, based upon Administrator Pruitt’s recent decision to ignore the EPA’s scientists and reverse the agency’s proposed ban on chlorpyrifos, it seems unlikely that, left to its own devices, the Trump Administration will take that step, and it will instead find a way to do the chemical industry a solid and deep-six all three proposals, or simply take no action and leave the public unprotected for the foreseeable future.
That would leave TSCA still stuck at first base, with no date for certain restriction of a dangerous chemical in sight. The fundamental problem of the moment is that for TSCA to deliver health and safety to the public, the President and the Administrator of EPA need to be willing to take actions that the chemical industry opposes. Given the current state of affairs, it looks like meaningful action under TSCA might be off the table for another four to eight years.
So, TSCA may end up being a 50 year-old virgin. But that doesn’t mean that the public must wait another decade to be protected. That can happen right now. The uncertainly of how the Trump EPA will implement the revised TSCA, and the length of time it will take for any meaningful actions to take effect, underscore why individual states, product manufacturers, and retailers must take action now to get dangerous chemicals—including but not limited to these three toxic solvents—out of products and off of store shelves.