Richard Denison, Ph.D., is a Lead Senior Scientist.
EDF has learned from sources across the Environmental Protection Agency (EPA) that its political appointees are taking steps to systematically dismantle the agency’s ability to conduct broad risk reviews of chemicals and effectively address identified risks under the Toxic Substances Control Act (TSCA).
The assault is taking the form of methodically excising from the scopes of the agency’s chemical reviews any uses of, or exposures to, chemicals that fall under TSCA’s jurisdiction, if those uses or exposures also touch on the jurisdiction of another office at EPA or another Federal agency.[pullquote]The Pruitt EPA’s attempt to atomize the evaluation of chemical risks has one purpose: to make it far less likely that risks needing to be controlled will be identified. If each activity that leads to a chemical exposure is looked at in isolation, it will be far more likely that such activity will be deemed safe.[/pullquote]
Under the Lautenberg Act’s 2016 amendments to TSCA, Congress directed EPA to identify the first 10 chemicals to undergo risk evaluations; EPA did so in December 2016. After the transition to the new Administration, EPA scrambled to produce documents that set forth the “scopes” of those evaluations in order to meet the law’s deadline of June 2017; EPA acknowledged, however, that its scope documents were rushed and incomplete, and promised to update them in the form of so-called “problem formulations” that would be issued within six months. Those documents are now months late.
We now are learning why: Political appointees at EPA are engaged in an intra-agency process intended to dramatically narrow the scopes of those first 10 reviews. They are seeking to shed from those reviews any use of or exposure to a chemical that touches on another office’s jurisdiction, apparently regardless of whether or what action has been or can or will be taken by that office to identify, assess or address the relevant potential risks of that chemical. Reports indicate that leadership in some offices are welcoming this move, while others are resisting it.
This new assault on TSCA implementation:
- is illegal and would make TSCA even weaker than it was before the 2016 reforms;
- flies in the face of the science that informs what we know about how chemicals can affect our health and that of our environment;
- exposes the charade that Pruitt was serious about strong TSCA implementation; and
- is counter to the bipartisan efforts that led to Congress overwhelmingly supporting an updated TSCA that broadened and deepened the TSCA office’s authorities.
What the law requires
Congress intentionally gave TSCA a very broad reach, evident even in the original law passed in 1976. EPA was authorized then, and is required now, to address under TSCA the full lifecycles – from manufacture to processing to distribution to use to disposal – of chemicals and chemical mixtures and products containing them. The new law expressly mandates that EPA identify and evaluate risks resulting from all intended and reasonably foreseen, as well as known, circumstances under which each of those activities takes place. Under this mandate, EPA is to make a determination on the chemical substance as a whole as to whether or not it presents an unreasonable risk, which may be due to a single or any combination of those activities. If such risk is found, TSCA provides EPA with a broad set of authorities and a mandate to deploy actions that fully eliminate the unreasonable risk.[pullquote]The approach EPA now plans to take would put the cart miles ahead of the horse, moving to the very front of the risk evaluation process a step that Congress intended not be undertaken until the very end.[/pullquote]
In finalizing its “framework rule” that laid out the details of how EPA will conduct chemical risk evaluations under TSCA, Pruitt’s EPA asserted that it could simply ignore chemical uses and exposures on numerous grounds. This assertion, which was a wholesale reversal of EPA’s stance in the pending rule proposed by the prior EPA, closely mirrored the demands of the chemical industry. EPA’s assertion of authority to ignore known uses and exposures violates the law and is currently being challenged in the courts.
Among the ways EPA asserted this authority was to state in the preamble to the final rule that it can simply choose not to consider uses or exposure that also fall under other statutory authorities. We now are hearing that is exactly what EPA plans to do – on steroids – for the first 10 chemicals undergoing risk evaluations.
To be sure, TSCA anticipates the possibility that another part of EPA or another agency might be able to effectively address an identified risk, and it requires EPA to consider that possibility. But that step is triggered only after EPA has undertaken its risk evaluation of the chemical and made its risk determination, not before the agency even understands the nature, extent and magnitude of the risk.
The approach EPA now plans to take would put the cart miles ahead of the horse, moving to the very front of the risk evaluation process a step that Congress intended not be undertaken until the very end. Instead, EPA will from the outset lop off from its risk evaluations potential sources of risk it has yet to evaluate at all; and this based on at best a hypothetical argument that another office or agency can and will adequately address a risk it too has yet to evaluate even in isolation, let alone through the broad, integrated risk evaluation TSCA demands of EPA.
Why this matters
The Pruitt EPA’s attempt to atomize the evaluation of chemical risks has one purpose: to make it far less likely that risks needing to be controlled will be identified.
This has long been the aim of much of the chemical industry: if each activity that leads to a chemical exposure is looked at in isolation, it will be far more likely that such activity will be deemed safe.
This is why the industry lobbied so hard that companies be able to request EPA to conduct risk evaluations only on narrow uses of a chemical the company chooses (and Pruitt’s EPA now allows this). This is why the industry has fought so hard to have EPA focus its risk reviews of a new chemical only on a company’s intended use (and Pruitt’s EPA will now do so), when the law requires new chemical risk reviews also to consider reasonably foreseen uses of a new chemical. This is why industry lawyers have pushed EPA to ignore risks to workers posed by new chemicals, and instead just toss them over to OSHA to deal with – despite the latter’s decimated authorities, weakened by decades of sustained industry assault. (It’s not yet clear how EPA will respond to this industry demand.)
Yet the science that informs our modern understanding of chemical exposures points us precisely in the opposite direction. This science tells us that the combined, long-term, even low-level exposures resulting from multiple uses and sources of a chemical are what matter. This science tells us that the timing, frequency, context, location and duration of exposures, as well as their magnitude at a given point in time and space, are what matter. This science is reflected in the steady push in risk assessment science toward the need to consider combined exposures from all sources, and to consider differential vulnerabilities of particular subpopulations such as infants, pregnant women, workers, the elderly and disproportionately exposed communities.
Congress embedded these concepts into the new TSCA, which is why it called for comprehensive risk evaluations of chemicals under the law. The approach being pursued by Pruitt’s EPA appears hell-bent on turning back the clock on this science.
The new approach mirrors the Pruitt EPA’s broader effort to weaken the agency
Pruitt has repeatedly claimed he is serious about strong implementation of the new TSCA. The TSCA office’s budget was excluded from the drastic budget cuts Pruitt and the Administration sought across the rest of the agency. And Pruitt has touted as “major milestones” meeting deadlines under the law for various rules and other required actions, even as he has sought to delay and roll back such actions in other EPA offices. We have blogged earlier about the illusory nature of such claims. An EDF colleague summed it up in a single sentence: “You can’t burn down my house, and then expect me to cook you dinner because the kitchen is still standing.”
Now it appears the kitchen, too, is to be set on fire.
The Pruitt EPA now intends to weaken the implementation of a new law Congress made stronger, by breaking it up into pieces and distributing the pieces to other parts of the agency the authorities of which Pruitt is relentlessly working to dismantle. And to other agencies that are under comparable assault by this administration. And this, even when there is no statutory obligation for other EPA offices or federal agencies to do anything about the discarded pieces they’ve been given.
Congress should be livid
Nothing less than the remarkable achievement of the 114th Congress in passing the first major environmental legislation in more than two decades is now in peril under Pruitt’s EPA. The strengthening of a failed law was seen as essential to restore public confidence and business certainty.
But now that an EPA leadership that routinely defies the law and ignores science is in the driver’s seat on TSCA implementation, the guard rails are being disassembled and the car itself is teetering on two wheels. And the cliff it’s heading toward is implementation of the law in a manner that will make it even weaker than the one Congress finally fixed less than two years ago.