Will we take this best chance ever to fix the law that helped bring about DuPont’s PFOA debacle?

Richard Denison, Ph.D., is a Lead Senior Scientist.

A remarkable exposé in yesterday’s New York Times Magazine documents the “brazen, decades-long” withholding by DuPont of mounting evidence of widespread exposure to and health effects from one of its signature chemicals (nicknamed PFOA) used in manufacture of its line of Teflon brand products.

The article is compelling in many respects, not the least of which is its scathing indictment of the federal laws that are supposed to protect Americans from toxic chemical exposures.  In particular, the article highlights the deep failures of the Toxic Substances Control Act (TSCA) – now limping into its 40^th year of existence without ever having been substantially amended.  TSCA is the law that – in principle – regulates most uses of PFOA and other so-called “industrial chemicals,” thousands of which are widely used in everyday consumer products and materials ranging from household cleaners to furniture to paint to electronics.

The article’s focus on TSCA is more than justified:  PFOA is one of 62,000 chemicals that were already on the market when TSCA passed in 1976.  All of these chemicals were “grandfathered” under the law, effectively presumed safe without any requirement that they be tested or reviewed for safety.  And while, as evidence of harm and widespread exposure mounted, the Environmental Protection Agency (EPA) did conduct a review of PFOA (which more than a decade later is still only in draft form), its authority under TSCA is so weak that it has not even attempted to use that authority to restrict any uses of the chemical, instead having to negotiate a gradual voluntary phase-out.  Indeed, EPA hasn’t tried to regulate any existing chemical under TSCA since 1991, when a court threw out its regulation of the known killer asbestos, on the grounds that EPA had not met its burden of proof of harm under TSCA.

Not mentioned in the article, however, is that for the first time ever Congress is on the verge of finally reforming TSCA.  Reform bills have passed both the Senate and the House, and negotiations toward a final reconciled bill are expected to get underway any day now.

While no single law could by itself have prevented the tragic story of PFOA from unfolding, provisions of one or both bills would go a long way to help prevent such events from happening again.  Let me mention some of the most important:  

• As the article notes, under current law EPA must first have evidence a chemical is harmful in order to require its maker to conduct testing – a Catch-22 that has meant EPA has required testing under TSCA for fewer than 300 of the 62,000 grandfathered chemicals. While both bills would give EPA new authority to order testing, the Senate bill actually strikes the Catch-22.
• Both bills would eliminate the provisions of TSCA that stymied EPA’s efforts to regulate asbestos. They specify that when EPA is determining whether or not a chemical is safe, it is not to consider the costs of regulating it.  Both bills would also remove the TSCA requirement that EPA prove its regulation of a dangerous chemical is the “least burdensome” on all possible regulation, although the House version would add a new “cost-effective” test for EPA regulations.
• The Senate bill would double penalties for criminal violations of TSCA and add a provision, found in other major environmental laws, that would subject anyone who willfully puts someone in imminent danger of death or serious bodily injury to imprisonment for up to 15 years, and any such company to a fine of up to $1 million per violation. The House bill makes no changes to this aspect of TSCA.
• The article cited growing scientific concerns raised over new replacement chemicals DuPont introduced for PFOA. TSCA constrains EPA’s ability and mandate to conduct rigorous safety reviews of new chemicals.  The Senate bill would for the first time require EPA to make an affirmative safety finding before a new chemical would enter the market.  The House bill makes no changes to this aspect of TSCA.
• The article noted how much safety information on PFOA DuPont hid from the public and state and federal agencies. The Senate bill would mandate, while the House bill would authorize, state government access to information deemed confidential.  Both bills would rein in companies’ ability to hide chemical safety information.  However, the House bill would weaken current TSCA by allowing a company, when submitting safety information to EPA, to hide the identity of the chemical in question from the public.

The good news is that we have the best chance in a generation to bring our nation’s main chemical safety law into the 21^st century.  The substantial challenge that remains is to ensure that, in this home stretch of reconciling the Senate and House bills, the final bill that is sent to the President’s desk is strong and broad enough to fix the many key flaws in TSCA and protect the public health.

Otherwise we can expect to see an endless series of articles like this weekend’s PFOA exposé.