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TSCA Reform: Is It Enough?

On Tuesday in a vote of 403-12 the U.S. House of Representatives passed a bill to update the Toxic Substances Control Act of 1976 (TSCA). The Frank R. Lautenberg Chemical Safety for the 21st Century Act, named after a former democratic senator from New Jersey who dedicated much of his life to TSCA reform, is a “compromise bill” designed to appease industry and environmental groups alike. The bill is also a compromise between the House and the Senate who came up with separate TSCA reform bills and were forced to combine them. The Senate’s vote is still pending, and will likely happen in the next few weeks. White House correspondents have said President Obama supports the bill and will sign it into law pending its passing in the Senate.
The original TSCA was meant as a way for EPA to evaluate the toxicity of chemicals and regulate them if they posed a threat to human or environmental health. However, TSCA is full of holes and red tape that have actually made it more difficult for EPA to regulate chemicals. The 1976 TSCA does not require industry to get safety approval before beginning the sale of a product and only allows EPA a certain amount of time to evaluate the product. Additionally, a counterintuitive measure of TSCA required EPA to provide proof of potential harm for a chemical before beginning to evaluate the harmfulness of the chemical. Worst of all, the original TSCA legislation required the EPA to consider the cost of enforcing regulations when evaluating chemicals. These restrictions meant that EPA could not or did not take sufficient regulatory action, and when it did, courts used TSCA to overturn their rules (including the asbestos regulations). Consequently, only about 200 chemicals have been evaluated since TSCA first passed, while the New York Times estimates about 64,000 chemicals are currently left unregulated.
The current TSCA reform bill aims to address the problems in the 1976 law. It requires EPA to test chemicals regularly, working on 20 chemical reviews at one time. It also ensures that EPA focus on chemicals that are more likely to harm vulnerable populations (children, workers, pregnant women, low income communities) and chemicals that could easily pollute drinking water. EPA will evaluate what it perceives as the most dangerous chemicals first, but industry can pay to have their chemicals evaluated out of order (useful if they want to begin selling new products). Industry will also contribute $25 million total each year to help fund the EPA evaluations. The rest of the funding will come from federal allocation of the budget. Finally, the TSCA reform bill also includes a requirement to find ways to reduce animal testing and a requirement to evaluate chemicals linked to cancer clusters (see Trevor’s Law).
However, despite the numerous improvements to TSCA, the reform bill is also somewhat problematic. The section that most concerns environmental activists and other critics explains that EPA regulations will preempt those set by states. While any state regulations enacted on or before April 22 will be upheld, EPA regulations will apply to chemicals evaluated after April 22nd. Proponents of the bill argue that this section addresses the patchwork of enforcement by state and that it will improve interstate commerce. However, this could mean that states with traditionally strict chemical safety measures like California could see their regulations watered down. States are permitted to request waivers from EPA, but EPA takes full responsibility for the nationwide evaluation of chemicals, even blocking states from continuing to evaluate chemicals the EPA is researching. This statute gives EPA an enormous amount of power, even allowing EPA to control our exposure levels. Even now EPA allows for higher exposure levels of some chemicals than do states. Are we sure we’re ready to trust them so completely? Federal safeguards such as those preventing chemical exposure should be a minimum, not a maximum. Or as Senator Bernie Sanders (D-VT) said when asked about the bill, “[F]ederal chemical regulations should be a floor, not a ceiling.” EPA should set the standards, but states should be free to make them more stringent in order to better protect the health of their residents.
 

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Did Chemical Company Author New Chemical Bill

In recent days, a draft of the bill — considered the product of more than two years of negotiation and collaboration between Sen. David Vitter, R-La., Sen. Tom Udall, D-N.M., and both chemical industry and environmental groups — was circulated by Udall’s office ahead of the hearing. The draft bill, obtained by Hearst Newspapers, is in the form of a Microsoft Worddocument. Rudimentary digital forensics — going to “advanced properties” in Word — shows the “company” of origin to be the American Chemistry Council.   Read full story here.

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Putting the ‘Teeth’ into TSCA: A Tale of Two Bills

TSCA, the Toxic Substances Control Act, is meant to do as its name suggests – control the introduction of potentially toxic chemicals into personal care products and the environment. The law, introduced in 1976, has been left untouched for decades. The chemical market now contains over 85,000 chemicals, with about 1,000 new chemicals introduced every year – and TSCA’s rules have only resulted in bans on five of these substances. ‘TSCA has no teeth’ is a common refrain among environmentalists, and speaks to the Act’s general incompetence in protecting human and environmental health.

How does TSCA work, and what makes it so ineffective? Essentially, TSCA requires that the EPA maintain a list – the TSCA Inventory – of all chemical substances that are manufactured or processed in the U.S.  Though companies must let the EPA know they are starting to manufacture a chemical, they have no responsibility to provide safety data along with this notice. The EPA can only require testing once they have proven the chemical presents a “potential risk,” creating a massive loophole for untested but potentially hazardous chemicals to enter the market. Not only are new chemicals subject to no scrutiny, but in-use chemicals are given the benefit of the doubt. When TSCA was first introduced, it “grandfathered in” all existing chemicals with the assumption they were safe for use. It’s readily apparent that there are more loopholes than law in TSCA.

Luckily, TSCA reform is back on the table, with the introduction of two new chemical regulation bills to Congress just last week. On March 10, Senators David Vitter and Tom Udall introduced a new bill that builds incrementally on a previous reform attempt, the Chemical Safety Improvement Act. Though the Udall-Vitter bill gives the EPA more power to regulate and requires safety testing of current and new chemicals, it has drawn criticism from environmental groups. The coalition Safer Chemicals, Healthy Families released a letter critiquing the bill’s classification system for chemicals, which groups them as “High Priority” or “Low Priority” after an initial review. Chemicals deemed High Priority will be subject to further testing to determine their safety, while Low Priority chemicals will not, a distinction that may open a so-called ‘Low Priority Loophole’ with the potential for abuse by industry. Additionally, the bill curtails the ability of states to set their own more stringent regulations, a fact many environmental groups have criticized.

Senators Barbara Boxer and Ed Markey introduced their own bill, the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act, on Thursday. Named after two cancer survivors, the bill employs stricter standards for chemical safety evaluation, sets deadlines for determining safety, and also allows states to continue to employ stricter regulations than those at the federal level. The Environmental Working Group has praised the bill, including its changes to safety-standard language. Instead of requiring EPA to prove a chemical has “no unreasonable risk of harm,” the bill sets the standard as “reasonable certainty of no harm” – the same standard that is applied to food additives and pesticides. The bill requires that the EPA consider risks that might result from unintended chemical spills, not just intended exposure levels. It also fast-tracks the safety analysis of asbestos, a proven cancer-causing agent that TSCA has thus far failed to regulate.

The Boxer-Markey bill shifts the burden of proof for chemical safety determination in a significant way. Rather than requiring proof of a chemical’s ‘unreasonable’ harm before regulation, it requires ‘reasonable’ certainty of its safety. Of course, there are still nuances and uncertainties in the determination of what constitutes “reasonable” safety, just as “unreasonable” harm is a flexible concept. All things considered, the Boxer-Markey bill takes the furthest step toward precaution that we have yet seen in Congress.

May the best bill win!

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Staying Safe (Probably): Risk, Hazard and Chemical Regulation

‘Risk’ and ‘hazard.’

These two words are often used interchangeably, but they have distinct meanings in the context of chemical safety assessment. When we say a particular chemical is ‘hazardous,’ we are noting its mere potential to cause negative health or environmental effects. On the other hand, ‘risk’ describes the probability that these negative effects will actually occur under specific circumstances. In order to generate a measurable risk, some exposure to the hazard in question must occur.


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Both a hazard and an exposure are necessary for a risk to exist.


If you have followed my last several posts, you’ve probably caught on to the idea that attempting to declare a chemical ‘safe’ or ‘unsafe’ is an exercise in futility. To comprehensively determine risk, we must know not only the detailed structure and function of a chemical, but also understand the intricacies of its interactions with the environment and the human body. Current chemical regulation in the United States operates within a risk-based framework. We establish standards and criteria for acceptable levels of hazardous compounds in products, in the environment and in our bodies; we enact bans and restrictions on chemicals in order to limit our exposures. These regulations are the product of risk assessments, which report not only the hazardous properties of chemicals but also the likelihood of human exposure.

My recent post on BPA illustrates the complexity of risk assessment. Though BPA has demonstrated hazardous potential, the levels to which humans are exposed to the compound, and therefore the actual risks of its use, are uncertain. Exposure may seem like a simple factor to evaluate, but our understanding of exposure is continually evolving, particularly with consideration for the special vulnerability of developing babies and children.  The ban on BPA in baby bottles reflects this emerging awareness of long-term effects of chemical exposures. However, the replacement of BPA with BPS illustrates the shortcomings of an approach that controls risk by limiting exposure to specific high-profile hazardous compounds.

The replacement of BPA, a known hazard, with BPS – an untested and unregulated compound with a nearly identical structure – may be considered an example of what scientists and regulators refer to as “regrettable substitution.” Regrettable substitution occurs when we eliminate one hazardous chemical from consumer products, only to replace it with a similar or even more hazardous alternative. Our risk-based chemical regulation enables us to remove demonstrably dangerous chemicals from consumer products, but also leaves profound loopholes for new chemicals, untested and unregulated, to enter the market in their stead, as long as risk assessments have not proven them dangerous. In a 2010 post on his Environmental Defense Fund blog, Dr. Richard Denison refers to this process as playing “whack-a-mole” with chemicals. No sooner have we knocked one hazardous chemical back into its hole, than a replacement rears its likely-hazardous head…until we generate evidence of its actual risk and seek to replace it with another unknown quantity.

Is this game of “whack-a-chemical” inevitable, or do more precautionary approaches exist? In Europe, regulators are striving for a balance between risk assessment and the more protective approach of hazard classification. While risk assessment relies on scientific studies to determine the risks of chemicals under different exposure scenarios, hazard classification groups chemicals based on their inherent hazard potential. It is this potential to cause harm that guides regulation, not demonstrated adverse effects.  A hazard classification regulatory scheme might have prevented BPS from entering the market, since its structural similarities to BPA make it a likely health hazard.

Hazard classification is essentially a more precautionary approach to chemical regulations. And when we operate in a framework of precaution rather than risk, the regulatory question itself changes. “A precautionary approach asks how much harm can be avoided rather than asking how much is acceptable,” write Dr. Ted Schettler and coauthors in a 2002 essay on the role of the Precautionary Principle in regulation and policymaking.

How can we better incorporate the Precautionary Principle into the chemical regulation process in the US? This question has been at the epicenter of the debate on reforming the Toxic Substances Control Act (TSCA), which I will cover next time on Backyard Talk.

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Demand What You Want-Not What’s “Feasible”

Truer words have never been spoken. In CHEJ’s recent training on Lessons Learned from New York State, which recently banned fracking until it can be proven safe, Eric Weltman from Food and Water Watch told the group to demand what you want not what is feasible.

I find it frustrating and a bit troubling when I visit communities who are struggling to protect their health and environment from environmental threats and they ask for less than they deserve and need. When I ask leaders, “why short change themselves,” they often respond saying they don’t want to sound unreasonable or worse because their opponents said it’s too expensive. Leaders and community members are often bullied into believing that they must take less or they won’t get anything. This is just not true.

At Love Canal in 1978, our community was told that government does not evacuate families and purchase homes because of toxic pollution. If we didn’t stick to our goal we would never had been evacuated. When the environmental health and justice movement demanded that no more commercial landfills be built, we were all told it must go somewhere. Several years later up until today no new commercial hazardous wastes landfills have been built, although it is still legal to do so.

In one of CHEJ’s consumer campaigns around a multinational corporation, we were demanding they take certain products off their shelves. The corporations response was, we won’t be bullied by radical environmental group. Yet a short time later they did exactly what we and consumers across the country asked.

No one should ask or accept as the final decision, what is not right and fair. However, winning the big ask is more difficult and demands serious discipline. Everyone needs to be on the same page and demand the same goal. Yes, there are always those few who will say out loud and even in the media that they would be wiling to accept less. Yet if the loud vocal people, the base of the majority, the framers of the campaign stick with their larger goal for justice, they will dominate the campaign. Those with smaller goals will be essential drowned out by the voices and actions of this  larger group.

This was the case in New York State around fracking. There were good people who would have accepted better regulations or only drilling in certain parts of the state. In every issue those working from various groups often have different goals. Sometimes their efforts help build toward the larger goal and other times they may be an irritation. The key to win it all is to build larger stronger, more visible opposition and demand for the larger goals. In this way you can win your goals without publicly fighting with others.

As Eric told us, “we were relentless. With op-eds, press events, using the public participation/comment period to submit a hundred thousands of “comments” that said Ban Fracking Now –not detailed line by line comments about regulations that were proposed. Hundreds of groups participated in bird dogging the governor who couldn’t go anywhere without a group, small or large in his face demanding he ban fracking.”

Secondly, Eric was clear that you need a single target, in NYS it was the governor. “You need to find the person who has the power to give you what you are demanding,” he said. I would add that it always needs to be a person not an entity, like regulatory agency or corporation. You need a human face on your opponent and your messengers to make it all work.

This is a time tested strategy and if you follow it you are more likely to receive a higher level of justice not a compromising solution.

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The latest news on the poison plastic: what every parent needs to know

The bad news on vinyl, the poison plastic, and phthalates keeps on mounting.

The more I learn, the more I wonder, why are we still allowing this hazardous plastic in our schools and homes?

Here are some of the most recent developments that every parent needs to know.

First responders file lawsuit over vinyl chloride disaster

In response to the December vinyl chloride disaster, which sent over a cloud of over 20,000 gallons of vinyl chloride into the air (originally destined for OxyVinyls in NJ), a group of first responders have filed a lawsuit over this toxic exposure.  NBC Philadelphia reports:

“A class action lawsuit was filed today relating to the Paulsboro, New Jersey train derailment and chemical spill that forced hundreds of people from their homes and left dozens sick last year.

The plaintiffs include more than 100 first responders, young children, and property owners who allege they sustained injuries and damages after the hazardous chemical spill… First responders claim that Conrail representatives advised them throughout the day that they did not need breathing masks or other personal protective equipment, despite high readings of vinyl chloride in the air. The suit states they later underwent extensive medical testing that showed high levels of vinyl chloride in their urine.”

Vinyl chloride is the basic building block of PVC, used to make vinyl flooring in our nation’s schools, hospitals and homes.  You can’t make this plastic without this cancer-causing chemical.

The latest science: vinyl chemicals toxic to our health

As families and first responders have been suing over vinyl chloride epxousre, more scientific studies have been published showing that vinyl chemicals are harmful to our health.  Some notable studies in recent months include:

  • Research funded by the US Department of Defense found phthalates, used to make vinyl flooring soft and flexible, may contribute to disease even generations after exposure. They report that, “Observations demonstrate that a mixture of plastic derived compounds, BPA and phthalates, can promote epigenetic transgenerational inheritance of adult onset disease. “
  • Only a few weeks after I blogged on new studies linking vinyl chemicals to asthma and obesity, researchers in China found a link between phthalates and obesity in school children.
  • Researchers in Ireland found potentially hazardous nanomaterials leach from PVC food packaging into food: “An exposure assessment revealed that human exposure to silver (assuming a worst case scenario that all silver is in its most harmful nanoform), is likely to be below current migration limits for conventional migrants and a provisional toxicity limit; however it is acknowledged there is still considerable uncertainty about the potential harmful effects of particles at the nanoscale.”

Policies to protect our kids from poisonous chemicals

On the policy front, the big news is the reintroduction of the Safe Chemicals Act by Senators Lautenberg and Gillibrand (honored to have her as my Senator here in NY, thank you very much 🙂 ), which will go a long way in protecting American families from unnecessary toxic chemicals like phthalates.  Yesterday, the American Academy of Pediatrics issued a news release announcing their endorsement of these common sense health safeguards.

As chemical policy reform continues to be debated here in the US, at the international level, Denmark has just unveiled a comprehensive new strategy to address phthalates in consumer products.

“As part of the strategy, the Danish EPA will commence evaluation of the information available about the most common phthalates. And this may very well lead to new bans or other measures if necessary, the Minister for the Environment pledges.”

Pressure mounting to eliminate vinyl and phthalates nationwide

Meanwhile, the market movement away from vinyl and phthalates continues.  For instance, EPEAT has recently announced new standards for printers and imaging equipment, which rewards PVC avoidance in electronics – which should have a huge impact on the electronics sector.

Just yesterday, the San Francisco Travel Association announced that all new street banners around the convention center will be completely free of PVC, due to the hazards PVC poses from production to use to disposal.

“San Francisco has always been a city of firsts when it comes to sustainability and now that extends to our city’s street banners. I’m pleased to see the San Francisco Travel Association embrace our city’s goals of zero waste and toxics reduction by eliminating the use of PVC, a harmful and non-recyclable material, and up-cycling the banners as well,” said Melanie Nutter, director San Francisco Department of the Environment.

Last and certainly not least, CHEJ and our friends at the Safer Chemicals Healthy Families campaign have launched a new Mind the Store campaign to urge the nation’s top ten retailers to eliminate the hazardous 100 chemicals, which includes phthalates, vinyl chloride, and a number of other chemicals unique to this poison plastic.  Many retailers, such as Target, have already taken steps to phase out PVC, but much more is still needed. Read all about what bloggers are saying about the new campaign, who traveled to stores nationwide urging them to get these nasty chemicals out of their products.

***

Phew, that’s a lot to report on!

Anything important I missed?  Would love to hear other new developments!

Till next time.  Your humble plastics crusader, Mike.

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For Sale: American's Health

Who’s buying? Not the advocacy groups that work tirelessly to protect people’s health and the environment, they can’t afford the purchase.

It’s the American Chemistry Council (ACC) who spent more in the fourth quarter then any quarter in recent history . . . in fact they doubled their spending.

ACC, the chief lobbying arm of the chemical manufacturing industry, spent $5.37 million that quarter, the fifth highest of any lobbying operation on Capitol Hill during that time.

ACC’s lobbying disclosure report shows they were involved in a host of issues, ranging from efforts to update chemical regulations, to EPA’s air pollution rules for boilers and incinerators, to the long-delayed health assessments of substances like bisphenol A (BPA) and formaldehyde.

Their disclosure also demonstrates it lobbied EPA on its 27-year-old IRIS assessment of dioxin. EPA was supposed to finalize the non-cancer portion of its dioxin assessment on January 31st but didn’t happen in the face of significant industry opposition. However, the agency hasn’t publicly explained the delay.

So while ACC protects and possibly even increases their profit, the American people, our children are unnecessarily expose to chemicals and face a lifetime of health problems and learning disabilities.

Yes America is for sale, and it’s time for American to stand up for everyone to stand up and say America’s Not For Sale! No More!

ACC included Sen. Frank Lautenberg’s (D-N.J.) “Safe Chemicals Act” in their efforts, which would overhaul the 1976 Toxic Substances Control Act (TSCA) and require manufacturers to prove their substances are safe before they go on the market.

For all of 2011, ACC spent almost $10.3 million, significantly more than the $8.1 million it spent the year before. Last year’s total trumps what was spent by Dow Chemical Co., which spent $7.3 million. The American Petroleum Institute, the largest trade association for the oil and gas industry, also spent far less.

These industries had record earnings last year – their shareholders are not suffering from a drop in earnings. Even though they are eating and drinking dioxin just like the rest of us, they can afford the safest foods and the best health care money can buy, unlike CHEJ’s constituency.

Although the polluters and their lobbyist have more money than most of us can imagine we can still prevail. They understand the real power of the people and cannot control that element. In fact, this is why someone sent a thug into our offices and cut our telephone and internet lines at near the peak of our fundraising and dioxin campaign organizing. Despite their efforts we delivered over 2,000 individuals and organizations from across the country to EPA representing millions of people.

It is time to exercise our collective power and put the power back in the hands of American people. However, our power can only be activated when people take step up. With the 2012 elections this year everyone has an opportunity to exercise your power. Ask candidates where they stand on your important issues and let them know they must earn your vote. This country belongs to its people not to corporations whose greed is insurmountable.

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Paging Lisa Jackson (and the rest of the EPA)

I still can’t believe it.

This week, EPA Administrator Lisa Jackson delivered a gift to Dow Chemical and the rest of the  chemical industry.

I bet you’re wondering.  What’d she do?  Nothing.

You see, that’s the problem.

For twenty seven years, we’ve been waiting for the release of the EPA’s report on the health hazards on dioxin.  Since 1985!  We know dioxin is one of the most toxic chemicals on the planet, but without a final report from EPA on the health impacts of dioxin, the EPA’s and state governments’ hands are tied to meaningfully protect us from this unnecessary poisonous chemical.

For twenty seven years, every step of the way, the chemical industry and big ag have delayed the release of this critical public health report.

We’ve been waiting.  And waiting.  And waiting.  It’s not just us.  Vietnam Veterans, breast cancer advocates, environmental justice leaders and many others have raised their voices and called on EPA to finalize this study once and for all. Thousands of people and organizations have signed a letter calling on EPA to finalize this report.  We’re all in this together.

Our rallying cry?  Enough is enough – no more delays!  After all, we have the the right to know.

And I’m afraid to say, it’s happened again this week.  I still can’t believe it.

That’s why we need your help.  We can’t let them get away with this!

In response to these new delays, we issued a national press release blasting EPA .   Our founder and Executive Director, Lois Gibbs, who’s been working on dioxin issues for over 30 years, had this to say:

“Shame on EPA Administrator Lisa Jackson for denying parents the information they need to protect their children from the health impacts of dioxin. This is America — parents have the right to know.  Today the EPA has once again caved into pressure from Dow Chemical and their chemical industry cronies.  EPA shouldn’t cave in to chemical industry dollars and interests over public health.  Cancer, diabetes, infertility, learning disabilities and other chronic diseases linked to dioxin exposure are extremely costly to American taxpayers. EPA missed yet another deadline to release their report on dioxin, one of the most toxic chemicals on the planet.  In recent months, the chemical industry has been working behind closed doors to hide and distort the truth about the dangers of dioxin.  At the same time, Vietnam Veterans, breast cancer advocates, public health organizations, and environmental justice leaders have stood shoulder to shoulder and urged EPA to do what’s right for the health of American children and families.  We call on EPA Administrator Lisa Jackson to immediately release this important report.  We can’t wait any longer.”

Our allies at the Lone Tree Council did as well. Michelle Hurd Riddick of the Council had this to say:

“Since the mid 1980’s when the Reagan administration permitted Dow Chemical to rewrite the EPA report on dioxin, administration after administration in the White House has cowed to this company and their lobbyists.  Public health is being sacrificed, our water resources disregarded and science is being ignored once again in an effort to placate the moneyed interest. It is indefensible that this administration capitulated to industry, reaffirming the belief of most Americans that corporations have greater influence and more control and rights than people”

This has generated a wave of media coverage around the country, from the Wall Street Journal and CNN, to Greenwire, the Saginaw News, Michigan Public Radio, and the Atlantic.

The American Chemistry Council (aka Dow Chemical’s spokespeople) was quoted as saying, “Another delay is unfortunate.”

What?  That’s just exactly what they want.

EPA has been amazingly silent this week.  They issued no official statement on the timeframe for next steps.  No update to the science plan.  Nothing.

I still can’t believe it.

Where is EPA Administrator Lisa Jackson?

Paging Lisa Jackson, the American people are waiting for you.  We can’t wait any longer.