The mission of our landmark chemical safety law, the Toxic Substances Chemical Act (TSCA), is to protect our families from untested, potentially harmful chemicals. But for the last four years, under Trump’s EPA, our chemical regulatory system has been rigged in favor of the chemical industry, and the implementation of TSCA has fallen far short of its mission to protect public health.
We now have an opportunity to rethink how the law could and should be used to advance a broader vision of greater health and environmental protection for all people.
Our colleague, Richard Denison, the Lead Senior Scientist at the Environmental Defense Fund, has been a leader in toxic chemical reform for many years. Richard’s written a four-part series about what’s facing a new EPA and the opportunities we have to change the course of toxic reform.
For all of us who care about the poisons being included in our stuff, this deep dive into our chemical safety system is necessary reading.
Here are excerpts from this important series:
It wasn’t that long ago, June 2016, when there was hope that our nation was at last embarking on the enormous task of reinvigorating and greatly strengthening our chemical safety system, 40 years after original passage of the moribund Toxic Substances Control Act (TSCA).
Passage of the Frank R. Lautenberg Chemical Safety for the 21stCentury Act by huge bipartisan majorities in both houses of Congress seemed to bode well for robust implementation of the law by the Environmental Protection Agency (EPA). Even the affected industry had accepted the reforms as essential to restoring public confidence in our federal system (hoping thereby also to stem the rising tide of actions by state governments, retailers, and others to fill the void left by EPA’s inability to ensure the safety of chemicals and products).
Labor and health and environmental public interest communities saw an opportunity to use the new TSCA to drive more thorough assessments of chemicals’ risks. The failure of our risk assessment-based regulatory system to address the multiple sources of exposure to a chemical affecting many different groups of people had long been viewed as a fundamental flaw of the old law. Fixing that flaw isn’t, unfortunately, how the last four years have gone.
As we look to the future, there is a pressing need to course-correct on TSCA implementation. But there is also an opportunity to rethink how the law could and should be used to advance a broader vision of greater health and environmental protection for all people. This series of blog posts will explore that potential.
But we must start with a brief look back at the damage done.
What went wrong…
In this installment, we will discuss why legal and effective TSCA implementation demands that EPA undertake comprehensive assessments of chemical risks that supersede the media-specific limitations of other environmental laws.
Conditions of use
Under TSCA, risks of chemicals are to be both evaluated and managed with respect to their “conditions of use.” That term is defined in TSCA to mean “the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”
This expansive definition means that EPA must include exposures from activities that span the entire lifecycle of a chemical in evaluating and managing its risks. EPA must also examine how such activities extend beyond those intended by the chemical’s manufacturers, processors, and users to encompass ways the chemical is known or can be reasonably anticipated to be handled. In determining whether a chemical presents unreasonable risk and how to manage that risk, TSCA requires EPA to consider exposures from these activities in combination, not just individually, and to make determinations of risk across all conditions of use of a chemical.
Each chemical activity EPA must evaluate and has authority to regulate can entail releases of and exposures to a chemical through multiple routes and pathways. Chemicals may be released from industrial facilities making or processing them and contaminate air, water, land, or waste. They may be present in workplaces and lead to worker exposures. Distribution of chemicals – including storage, transfer and transport – can lead to incidental or accidental releases. Chemicals used or present as impurities in products can expose consumers or workers when the products are made, used or disposed of. Through TSCA’s mandate that EPA consider all “conditions of use” of a chemical, Congress directed the agency to account for all of these exposures when identifying and addressing a chemical’s risks.
Best available science…
The Biden administration’s stated commitment to environmental justice and greater health equity provides an opening to harness TSCA as one means of making progress.
Extensive scientific research demonstrates that some groups are at greater risk from chemicals than the general population. Such groups include those who are more highly exposed because of where they live or work, as well as groups who are more susceptible to the effects of chemical exposures, such as those with pre-existing conditions. Differential exposure and susceptibility to toxic chemicals contribute to and amplify the major health inequities we see across the U.S. population.
Potentially exposed or susceptible subpopulations
TSCA expressly incorporates this body of scientific knowledge – and it is the only federal environmental statute to do so in such an expansive manner.
Throughout TSCA is the requirement for EPA to consider risks to “potentially exposed or susceptible subpopulations,” which TSCA defines as “a group of individuals within the general population identified by the Administrator who, due to either greater susceptibility or greater exposure, may be at greater risk than the general population of adverse health effects from exposure to a chemical substance or mixture, such as infants, children, pregnant women, workers, or the elderly.”
Recognition of the need to address cumulative impacts has been around for many years but rarely acted on. EPA has a framework for cumulative risk assessment dating back to 2003, but its use has been limited and it may need to be updated.
There is every reason for the Biden EPA to start applying cumulative approaches to its chemical assessments under TSCA – something that EPA’s own Children’s Health Protection Advisory Committee (CHPAC) recently recommended.
In 2008, the National Research Council of the National Academies published a report titled Phthalates and Cumulative Risk Assessment: The Tasks Ahead that provided a roadmap to conducting just such an assessment on just such chemicals. One near-term opportunity to advance a cumulative risk approach under TSCA is to conduct such a risk evaluation for the six chemicals in the phthalates category for which risk evaluations were recently initiated.
While further advances in the science will help strengthen the application of cumulative approaches to chemical assessments, there is every reason for the Biden EPA to start doing so now under TSCA. EPA’s own Children’s Health Protection Advisory Committee (CHPAC) recently recommended just that.
Why is a cumulative impact approach so critical?