{"id":10228,"date":"2021-04-08T08:24:22","date_gmt":"2021-04-08T13:24:22","guid":{"rendered":"http:\/\/blogs.edf.org\/health\/?p=10228"},"modified":"2021-04-09T08:28:49","modified_gmt":"2021-04-09T13:28:49","slug":"the-damage-done-part-1-a-post-mortem-on-the-trump-epas-assault-on-tscas-new-chemicals-program","status":"publish","type":"post","link":"https:\/\/blogs.edf.org\/health\/2021\/04\/08\/the-damage-done-part-1-a-post-mortem-on-the-trump-epas-assault-on-tscas-new-chemicals-program\/","title":{"rendered":"The damage done, Part 1: A post-mortem on the Trump EPA\u2019s assault on TSCA\u2019s new chemicals program"},"content":{"rendered":"

Richard Denison, Ph.D.<\/a>,\u00a0is a Lead Senior Scientist.<\/em><\/strong><\/p>\n

Part 1 of a 2-part series (see Part 2 here<\/a>)<\/em><\/strong><\/p>\n

With last week\u2019s announcement by EPA<\/a> that it intends to reverse two of the most damaging policy changes the Trump EPA made to EPA\u2019s reviews of new chemicals under the Toxic Substances Control Act (TSCA), there is hope that going forward EPA\u2019s reviews will once again conform to TSCA\u2019s requirements and better protect workers, consumers, the public and the environment.<\/p>\n

Predictably, the chemical industry and its phalanx of law firms \u2013 who demanded and embraced<\/a> the Trump EPA\u2019s policy reversals \u2013 have been howling loudly, doing their best impressions of Chicken Little.\u00a0 They predict huge backlogs and economic calamity of all sorts, including an end to American innovation, and their lawyers are already threatening legal action \u2013 a clever way to drum up business, no doubt.<\/p>\n

The fact is that EPA spends scarce resources reviewing hundreds of new chemicals every year that their manufacturers are not serious about \u2013 and often not in any hurry about \u2013 commercializing.\u00a0 And industry then uses any delays in those reviews to argue that the review process is too rigorous and demand that it be scaled back.<\/em><\/strong><\/p><\/blockquote>\n

But facts are stubborn things.<\/p>\n

In this first post I\u2019ll look at a few reasons why the industry\u2019s new round of fear-mongering is not based in fact.\u00a0 And in a second post I\u2019ll look at the decisions on new chemicals made under the Trump EPA to shed more light on the real reason why industry is upset:\u00a0 It just may have lost the inside track<\/a> that yielded such high dividends in the form of flawed approvals of hundreds of new chemicals.\u00a0 Or, as one prominent industry attorney bluntly said recently in a related context, \u201cthe good days are over, quite frankly.\u201d\u00a0 <\/p>\n

Debunking the return-of-the-backlog myth<\/em><\/strong><\/p>\n

Back in 2018, then-Administrator Scott Pruitt used the excuse of the backlog in new chemical reviews to upend EPA\u2019s then-succeeding implementation<\/a> of the TSCA amendments governing new chemicals.\u00a0 Yes, a temporary backlog had developed because the TSCA amendments made major improvements that had to be immediately applied by EPA, without allowing any time for a transition.\u00a0 But by the time Pruitt announced his illegal policy reversals<\/a> and claimed they were necessary to address the backlog, EPA\u2019s own data showed that the backlog had already nearly been eliminated<\/a> by EPA career staff who were diligently implementing the program in a manner that conformed to the law.\u00a0 Those same data showed that immediately following Pruitt\u2019s imposition of changes, the backlog began to grow again.<\/p>\n

EPA\u2019s earlier success in addressing the initial backlog while legally implementing the law \u2013 before the Trump EPA upended things \u2013 bodes well for the Biden EPA to return to that state of affairs.\u00a0 EPA\u2019s announcement last week is a strong start to that process.<\/p>\n

Debunking the stifling-innovation myth<\/em><\/strong><\/p>\n

This industry argument has been one of its favorite go-to\u2019s for many years (see, e.g., here<\/a> and here<\/a>).\u00a0 It goes like this:\u00a0 \u201cIf EPA doesn\u2019t quickly allow virtually every new chemical it reviews onto the market without restriction, American innovation will suffer.\u201d\u00a0 And industry goes further, to assert that TSCA itself calls on EPA to promote innovation and hence, that conducting rigorous new chemical reviews is somehow at odds with Congress\u2019 intent under TSCA.<\/p>\n

This spurious claim relies on the only<\/em> reference to innovation in all of TSCA, in a list of the law\u2019s policy intentions (section 2(b)(3)<\/a>), same language in both the old and new law).\u00a0 Industry players love to distort this provision, so let me quote it in its entirety (emphasis added):<\/p>\n

(b) POLICY.\u2014It is the policy of the United States that\u2014<\/p>\n

\u2026<\/p>\n

(3) authority over chemical substances and mixtures should be exercised in such a manner as not to impede unduly or create unnecessary economic barriers to technological innovation while fulfilling the primary purpose of this Act to assure that such innovation and commerce in such chemical substances and mixtures do not present an unreasonable risk of injury to health or the environment<\/em><\/strong>.<\/p>\n

When citing this provision, industry typically does one of two things.\u00a0 It either deceptively paraphrases the provision as saying that, under TSCA, EPA shouldn\u2019t act in a manner that impedes innovation.\u00a0 Or it selectively quotes the provision \u2013 deceptively lopping off the second half of it (the part I added emphasis to above).<\/p>\n

But Congress made clear that TSCA\u2019s primary purpose<\/em> is to ensure that any innovations tied to chemicals do not present unreasonable risks \u2013 quite the opposite of industry\u2019s assertion.<\/p>\n

Given that the development and application of new chemicals are a clear source of innovation, how else did Congress intend for EPA to provide an assurance that innovation and commerce in chemicals do not present unreasonable risk other than through robust scrutiny of new chemicals prior to their commercialization?<\/p>\n

Another reason to question the industry\u2019s playing of the innovation card<\/em><\/strong><\/p>\n

You might think based on the industry\u2019s and the last administration\u2019s obsession<\/a> with streamlining new chemical reviews and emphasizing speed to market over everything else that it really was motivated by its desire to get new chemicals into use as fast as possible.\u00a0 The facts simply don\u2019t bear that out.<\/p>\n

I looked at chemicals that were cleared for market entry by either receiving a \u201cnot likely to present an unreasonable risk\u201d determination by EPA, or being subject to a consent order signed by the chemical\u2019s manufacturer and EPA.\u00a0 I then asked this question:\u00a0 For how many of these approved chemicals had their manufacturers submitted a Notice of Commencement (NOC), which is required under TSCA to be submitted within 30 days of a company starting to make or import a new chemical for commercial purposes?<\/p>\n

If companies\u2019 demands for fast EPA approvals were based on their need to get their new chemicals quickly onto the market, you would expect the they would have promptly filed a NOC for the vast majority of such chemicals.\u00a0 Yet here are the facts:<\/p>\n