The many ways the American Chemistry Council wants to turn back time on TSCA implementation – Part 1

Part 1 of a 2-part series: Minimizing or ignoring chemical risks

Maria Doa, Ph.D., Senior Director, Chemicals Policy 

In its recently issued ‘State of TSCA’ report, the American Chemistry Council (ACC) tries to turn back the clock on how EPA assesses and mitigates the risks of toxic chemicals. The chemical industry group looks to return to the policies of the Trump years – a time rife with scientific integrity issues and wholesale disregard of risks – particularly those risks to frontline communities, workers and other vulnerable groups: the very groups the Toxic Substances Control Act (TSCA) calls out for special consideration.

This 2-part blog series looks at the six ways ACC hopes to turn back time on chemical safety and looks at the harms that would result if trade group’s self-serving ideas were to be adopted. Part 1 looks at the types of risks ACC wants EPA to exclude from its chemical risk evaluations, the workers and other groups whose health would be affected, as well as the trade group’s goal to have itself appointed as the arbitrator of EPA science. Part 2 looks at ACC’s efforts to dictate the process for assessing new chemicals and industry’s clear goal to avoid paying its fair share of the cost to evaluate the risks posed by some of the most dangerous chemicals already in the marketplace. 

How does ACC propose to turn back the clock on TSCA? 

They would have EPA exclude from consideration many of the risks we face from toxic chemicals 

TSCA explicitly requires that EPA consider whether the “manufacture, processing, distribution in commerce, use or disposal” – essentially the life-cycle of the chemical poses an unreasonable risk and then take action to mitigate that risk. ACC, however, would have EPA ignore the risks from certain activities, such as some releases to air, and disregard TSCA’s requirement to take action to reduce risk if another law like the Clean Air Act or Occupational Safety and Health Act could theoretically address one of these activities. ACC of course omits the fact that other laws often can only partially address chemical risks from these chemical uses or that other statutes do not consider where a chemical poses an unreasonable risk to health or the environment. Congress was aware of these other laws when it amended TSCA in 2016 and saw the need for the updated chemical safety law to address the risks of toxic chemicals more holistically. 

If ACC had their way, EPA would ignore the clear direction of TSCA to address the unreasonable risks presented by toxic chemicals throughout their life-cycle and leave people at risk of exposure to many chemicals that can cause harms like asthma or cancer.

Minimize the other risks we face from toxic chemicals 

In addition to barring EPA from considering many of the exposures of chemicals, ACC would have EPA avoid looking at all the known and likely uses of the chemical and instead consider the risks from each individual use of a chemical in isolation.

While exposure to a chemical from a particular use or application may not pose an unreasonable risk, exposure to multiple uses of the chemical may indeed present an unreasonable risk.

ACC’s approach would have EPA determine that individual uses of some of the most toxic chemicals like lead, asbestos, TCE, and methylene chloride are safe.

Rather than pursuing innovation and leading the way to transition to safer alternatives, ACC would prefer that EPA allow industry to continue certain uses of chemicals that have a long history of causing significant harm.

Minimize the risks faced by workers 

ACC also wants to turn back time and return to the Trump days when the actual risks to workers were not considered. Under President Trump, EPA risk evaluations almost always resulted in a conclusion of no unreasonable risk to workers because they assumed personal protective equipment (PPE) was always used in the most protective way and that Occupational Safety and Health Administration (OSHA) standards were always met.

Of course, there are several things wrong with this. PPE is not the panacea that ACC would characterize it as. Equipment like respirators don’t always fit correctly and are burdensome to the worker if worn for long periods.  Indeed, the preferred approach is not to first use PPE – or assume its use – when addressing hazards to workers. EPA should instead start by trying to eliminate the hazard to the worker altogether, and next by reducing exposure through process, engineering or administrative changes. Because it is less effective, consideration of PPE should be the least preferable approach, taken only after reducing chemical exposures in the first place.

Even where OSHA standards are met, in many cases there would still be an unreasonable risk. This is because OSHA standards are set using both risk and factors other than risk to the worker, such as economic feasibility, which often preclude the agency’s ability to ensure that the chemical does not present a significant risk to workers. OSHA itself has also acknowledged that many of its standards are outdated and not protective. Indeed, the agency recommends that other standards be used.

But that’s not all. ACC would have EPA underestimate the risk to workers in its risk evaluations by assuming that PPE or other protective measures practiced by some companies are used by everyone. This is not only a broad generalization and often based on limited data, but it also puts the cart before the horse.  ACC should know that EPA must first estimate exposure and risk and then determine the best way to mitigate it, as would be clear from a consideration of basic risk assessment principles.

ACC’s preferred approach would turn this process on its head and assume every worker is fully enveloped in the most protective PPE and call it a day. Rather than place responsibility for a safe workplace on the company, ACC would put the responsibility solely on the worker to figure out how to ensure their own safety.

Let industry dictate the science used in EPA assessments  

Despite its clear financial interest in the outcome of EPA assessments and decisions, ACC continues its failed attempt to appoint itself as the arbitrator of EPA science. The trade group turns to its tired and self-serving claim that EPA is using flawed science, while at the same time introducing impediments to EPA’s use of the best available science in its TSCA evaluations, including use of Integrated Risk Information System (IRIS) assessments, the gold standard for identifying and characterizing the hazards that result from exposure to chemicals.

ACC also claims that EPA overestimates risk and thus should rely on industry for information. Of course, ACC would say EPA overestimates risks. The industry group’s approach to an assessment of risks from a toxic chemical would be to have EPA exclude as many exposures as possible, minimize other exposures and conclude that certain uses of the most toxic substances are just fine.

Where EPA needs additional chemical safety information, it should rely not only on the data industry is willing to provide, but also on the information gathering provisions of TSCA that give the agency the authority to require information necessary to make an informed and health-protective risk assessment.

In my next blog, I look at ACC’s plan to dictate how EPA should assess the safety of new chemicals that industry hopes to bring to the marketplace, as well as the trade group’s effort to let industry avoid paying its fair share of the cost for EPA to evaluate chemical risks. 

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