The Trump EPA is setting back chemicals policies by decades

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

Tacoma, WA 1972

As we approach the third anniversary of the historic passage of bipartisan legislation to overhaul our nation’s broken chemical safety system, we’re hearing that political appointees at the agency are gearing up to celebrate their “successes” in implementing the law.[pullquote]Even more disturbing than its individual actions are the methodical steps the Trump EPA is taking to dismantle decades of progress in our country’s chemicals policies.[/pullquote]

While the chemical industry may well have things to celebrate, it’s simply not the case for the rest of us:  Comments from former top EPA officials, members of Congress, state and local governments, labor groups, firefighters, water utilities, public health groups, and a broad range of environmental groups make crystal clear that there’s nothing warranting celebration.  EPA’s actions are threatening the health of American families.

But as I reflect on how implementation of the Toxic Substances Control Act (TSCA) has gone off the rails under the Trump EPA, even more disturbing than its individual actions are the methodical steps it is taking to dismantle decades of progress in our country’s chemicals policies.  In this post, I’ll briefly highlight five such policies and how this EPA is undermining them:

• Pollution prevention
• Inherent safety and hazard reduction
• Protection of vulnerable subpopulations and environmental justice
• Holistic, real-world risk assessment
• Public right to know

Pollution prevention vs. end-of-pipe pollution control

Several decades ago, the nation recognized the limitations of approaches that seek to manage chemical exposure through pollution controls and limits on releases.  In passing the Pollution Prevention Act of 1990, Congress embraced policies and practices that reduce hazardous chemicals at the source as preferable to those that seek to manage their release:

The Congress hereby declares it to be the national policy of the United States that pollution should be prevented or reduced at the source whenever feasible; pollution that cannot be prevented should be recycled in an environmentally safe manner, whenever feasible; pollution that cannot be prevented or recycled should be treated in an environmentally safe manner whenever feasible; and disposal or other release into the environment should be employed only as a last resort and should be conducted in an environmentally safe manner.

TSCA empowers EPA to stop pollution at its source, and there was renewed hope when TSCA was reformed in 2016 that it would be implemented in a manner that reduced the production and use of toxic chemicals, rather than continue to try to manage them through end-of-the-pipe controls.

Sadly, the Trump EPA has sought to reverse progress in its implementation of TSCA.  It is intent on ignoring exposures that ensue from environmental releases of chemicals to air, water and land, excluding them entirely from its risk evaluations based merely on the possibility that they could be addressed through a pollution control law that EPA administers.  Even where a chemical is actually regulated under another law, the allowed releases still contribute to the chemical’s overall risk, which EPA is required to evaluate under TSCA.  (See here and here.)

In the wake of the Trump EPA’s retreat from its proposed comprehensive ban of methylene chloride-based paint strippers that would have protected workers as well as consumers, EPA’s actions as well as its rhetoric have shifted to embrace “tools” other than bans.  Even for high-risk uses of highly toxic chemicals, EPA is opting to apply regulatory band-aids that allow the industry to continue to make and use the chemicals in ways that continue to expose people and the environment.  The head of the EPA toxics office recently stated:

There might be lots of ways to mitigate [] risk or manage [] risk.  This could involve notifications, process controls, volume management or labelling.  I think there’s this sense on the street that EPA is looking at these chemistries with the intent that we’re going to ban them all at the end of the day.  I don’t think that will be the result.

Inherent safety and hazard reduction vs. reliance on personal protective equipment for workers

Not long ago, in 2015, EPA joined with the Occupational Safety and Health Administration (OSHA) to advocate for policies that give strong preference to chemical management approaches that avoid or reduce hazard and promote inherent safety in the workplace.  EPA sought to embed within its TSCA chemicals policies OSHA’s longstanding industrial hygiene “hierarchy of controls,” which prioritizes measures to eliminate or reduce the presence of a hazard in occupational settings – through measures such as substitution and use of less toxic chemicals and institution of engineering controls – over measures like personal protective equipment (PPE) that shift the burden of protection off of companies and onto the backs of workers.

That was then.  Now the Trump EPA, in reviewing both new and existing chemicals, falsely claims that any possible risks to workers can and should be managed by reliance on PPE.  EPA is greenlighting dozens of new chemicals for unfettered market access by blithely asserting that the mere presence of a non-binding recommendation in a company’s safety data sheet (SDS) that workers should wear PPE is sufficient to mitigate the clear risks it has found those chemicals present to workers.  And EPA has failed to finalize its 2016 proposal to incorporate the hierarchy of controls into its regulations.

Protecting vulnerable subpopulations and environmental justice vs. ignoring risks to workers and affected communities

Scientists have long understood that certain groups of people can be far more susceptible to the adverse health impacts of chemical exposures than the general population may be.  Examples of such groups are infants and children, pregnant women, and the elderly.  And certain groups can be disproportionately exposed to chemicals because of where they live or work, including low-income, minority, and indigenous communities as well as workers.  This is a bedrock concern of the environmental justice movement.

Despite the strong scientific evidence supporting these concerns, federal environmental statutes generally don’t reflect these realities by requiring EPA to give special scrutiny to the risks faced by vulnerable subpopulations.  The 2016 amendments to TSCA were a significant departure, compelling EPA to identify, assess, and mitigate the potential or actual risks presented to “potentially exposed or susceptible subpopulations.”  Congress defined that term to mean:

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.

TSCA requires EPA to use TSCA’s authorities to impose restrictions on any chemical EPA determines presents (for existing chemicals) or may present (for new chemicals) an “unreasonable risk” – which is TSCA’s health standard – to any such subpopulation.

Despite this clear mandate, the Trump EPA is flouting it at every turn.

With respect to workers, EPA is routinely invoking and seeking to defer to OSHA to address worker risks posed by the chemicals it is reviewing.  As OSHA itself has acknowledged, its authorities and standards are woefully out of date and inadequate.  Moreover, TSCA requires EPA to use its TSCA authorities to impose restrictions on any chemical it finds exceeds TSCA’s health standard – not OSHA’s standard.  That is a huge difference:  Reliance on OSHA’s standard allows workers to be exposed to chemicals at levels that are hundreds or thousands of times higher than would be allowed under TSCA.

With respect to disproportionately affected groups and communities, EPA’s decision to exclude environmental releases covered by other statutes from its chemical risk evaluations fails to acknowledge that those other statutes have historically failed to consider environmental justice communities (for more detail, see section 12 of these EDF comments).  The National Environmental Justice Advisory Council (NEJAC), a federal advisory committee to EPA, has stated:

Environmental protection in this country has grown by individual pieces of legislation, developed to address a particular environmental media or a pressing problem like abandoned toxic sites.  Environmental law has not evolved from a master game plan or unifying vision.  As a result, the statutes have gaps in coverage and do not assure compatible controls of environmental releases to all media from all sources.

EPA’s exclusions of exposures under TSCA based on other statutes will result in unfair treatment to environmental justice communities by ensuring that they will continue to bear a disproportionate share of the risks posed by chemicals.

Moreover, EPA’s exclusions of exposure pathways linked to so-called legacy activities – legacy use, associated disposal, and legacy disposal – will specifically underestimate the exposures of environmental justice communities.  NEJAC has previously informed EPA of this exact concern:

It is particularly important to recognize historical exposures in communities and tribes suffering environmental injustice.  In some cases, community members were exposed to pollutants for many years in the past from facilities that are no longer functioning or in business.  These past exposures could act to increase the body burden of a subpopulation so that vulnerable individuals start off at a higher dose.  Even if the dose-response curves among the subpopulation are the same as the general population, starting off at a higher point on this curve puts the members of the vulnerable subpopulation at greater risk for exposure to the same amount of a compound than the general population.  This fact is highly pertinent to the historical legacy of racial and economic discrimination, and the relationship of vulnerability to health disparities.

In a word, the Trump EPA’s TSCA policy reversals will systematically underestimate and fail to mitigate the chemical exposures and risks faced by many environmental justice communities.

Holistic, real-world risk assessment vs. use-by-use risk evaluations and determinations

Over the past 20 years or more, EPA had faced persistent calls from the scientific community to broaden its approach to risk assessment to better reflect the real world (see, for example, here, here and here).  That would mean adapting risk assessment methods to address, for example, the fact that people are typically exposed to a chemical from multiple sources and that it is the combination of those exposures that determines risk.  Improvements in risk assessment would account for the fact that chemicals frequently are or could be used in ways that are not intended by their manufacturers.  A more holistic approach would mean that, in determining whether a chemical presents significant risk, EPA would account for all of its uses and exposure pathways across a diverse population.

The 2016 amendments to TSCA sought to advance EPA’s practice of risk assessment in precisely these respects.  They require that EPA assess the risks presented by each chemical substance as a whole, not just individual uses of the chemical.  Specifically, EPA is required to evaluate a chemical’s risks under its “conditions of use” – which is very broadly defined to encompass not only the full chemical lifecycle, but also all of the “intended, known, or reasonably foreseen” activities that occur at each lifecycle stage.  TSCA expressly mandates that EPA assess risks to and protect not only the general population but also vulnerable subpopulations.

Among the first steps taken by conflicted political appointees when they arrived at the Trump EPA was to subvert this intent of the law.  These appointees wholly reversed the prior Administration’s proposal for how it would conduct risk evaluations under TSCA, imposing changes that closely mirrored the wish list of the chemical industry’s main trade association.  Rather than conducting comprehensive risk evaluations that would reflect the best science, EPA asserted sweeping authority to pick and choose what uses and exposures it will include and exclude.  Even more damaging and at odds with the law, EPA proclaimed it can make individual risk determinations, declaring specific uses of a chemical safe in isolation from other uses.

EPA has followed through on this anti-science approach, issuing risk evaluation documents that severely restrict the uses of and exposures to each chemical that EPA will include – thereby underestimating their risks and raising the specter that at least particular uses of the chemicals will be declared safe when they aren’t individually or in combination with the risks arising from other sources of exposure.

Public right to know vs. protecting corporate financial interests

The nation has long embraced the public’s right to know about chemicals to which they may be exposed.  Perhaps the most notable embodiment of this principle is the 1986 law that established EPA’s Toxics Release Inventory, which is titled the Emergency Planning and Community Right-to-Know Act (EPCRA) (emphasis added).

Even earlier, the original 1976 TSCA reflected this fundamental right:  It specifically states that health and safety studies and information from such studies submitted to EPA cannot be claimed and are not eligible to be protected from disclosure as confidential business information (CBI) – regardless of a company’s proprietary interest in those studies.

The Trump EPA is flouting this aspect of the law in myriad ways.  It has bent over backwards to come up with ways to deny public access to health and safety studies on which it is relying in its first risk evaluation conducted under reformed TSCA; see here and here.  This EPA stopped making public its professional staff’s initial recommendations on whether new chemicals should be subject to regulation, a practice that went back decades and provided vital public accountability of the agency in making such decisions.

EPA has failed to make new chemical notices and accompanying information readily publicly accessible, and is routinely allowing companies that submit health and safety studies or safety data sheets with such notices to entirely or heavily redact them.  All of this is illegal under both TSCA and EPA’s regulations (see here and here).

Conclusion

None of these policy reversals by the Trump EPA is accidental:  Each closely mirrors positions long espoused by the most regressive parts of the chemical industry, who now hold sway at the Trump EPA.

What these reversals don’t represent, as we approach the third anniversary of what remains a landmark law, is anything to celebrate.  We can only hope that, at some point soon, EPA will be able to resume pursuing its mission, restore integrity to TSCA implementation, and work to revive the chemicals policies the Trump EPA is intent on stomping into the ground.