When the proposed Safe Chemicals Act was superseded by the introduction of a weakened bipartisan bill, public health gave way to business-as-usual.
By Francesca Rheannon
One of the last legislative actions Senator Frank Lautenberg (D-NJ) did before he passed away last week was to introduce a bipartisan bill to address the issue of chemical safety in manufacturing and consumer products.
The Chemical Safety Improvement Act (CSIA) was signed by Lautenberg, Senator David Vitter (R-LA) and 14 other co-signers.
The bill came as a surprise to many in the environmental community because in April 2013, Lautenberg re-introduced the Safe Chemicals Act (SCA) with co-sponsor Kirsten Gillibrand (D-NY) and 27 other senators.
Correcting Toxic Substances Control Act
That act aimed to transform the toothless tiger of the Toxic Substances Control Act (TSCA — pronounced “tosca”) into what it was originally meant to do: protect consumers from harmful chemicals in the products they buy and use by making sure such chemicals never get in those products in the first place.
SCA was widely hailed by environmental advocates as a major step forward in protecting public health — and, for the first time, explicitly seeking to redress the harms to the especially vulnerable: children and residents of poor communities, both populations that are at greater risk for exposure to chemical hazards.
But the bipartisan bill that replaced it has caused shock and dismay at the serious compromises made. In fact, it appears from a detailed analysis by the Environmental Working Group that the CSIA adds back into the regulatory language the very flaws that made TSCA unenforceable.
Passed in 1976, TSCA is the only regulatory act we currently have in place to try to prevent toxic chemicals from entering the market, rather than controlling them after they’ve already wreaked havoc on our bodies and the environment (with few exceptions, an exercise in futility.) But from the get-go, the chemical companies lobbied, stonewalled, and pressured government to sap the bill of its strength -- and succeeded. Here’s former EPA chief Lisa Jackson speaking to the Commonwealth Club in 2009:
"Right now, we are failing to get this job done. …Over the years, not only has TSCA fallen behind the industry it’s supposed to regulate — it’s been proven an inadequate tool for providing the protection against chemical risks that the public rightfully expects…Since 1976, EPA has issued regulations to control only five existing chemicals determined to present an unreasonable risk. Five from a total universe of almost 80,000 existing chemicals."
Jackson’s frustration is shared by the majority of scientists, environmentalists and regulators who see the horrendous toll toxic products are having on our environment and health.
Toxic Living Through Chemistry
Most Americans presume that most chemicals are safe.
But modern chemicals used in consumer goods are largely derived from petroleum, extracting from them the polycyclic aromatic compounds (PACs) and other ingredients that have time and again, shown up on “suspected carcinogen” lists.
The PACs, PCBs, phthalates and organophosphates (adapted from the chemical warfare weapons of World Wars I and II) that go into our pesticides, food, personal care products, carpets, children’s pajamas, furniture, etc., and then out into the environment compose the more than 200 man-made chemical compounds every human on the planet carries circulating in their blood and pickling their organs.
(For a fascinating case study of the birth and growth of the chemical industry and the devastation to human health it has wrought, read journalist Dan Fagin’s page-turning history of Ceiba Geigy’s chemistry works in Tom’s River, New Jersey. It should be required reading for every business school.)
TSCA’s Catch 22
As a terrific new film, UnAcceptable Levels, points out, TSCA is up against a Catch 22. One of the experts interviewed in the documentary, Davis Baltz of the Precautionary Principle Project, says:
“[regulators] have to demonstrate there is a problem with the chemical without having any information about it but they can’t compel the industry to provide information unless they can show there’s a problem.”
And the foxes are guarding the henhouse: the testing facility is funded by the chemical industry itself, which decides which chemicals to test, doesn’t have to give any safety data to the government, and doesn’t even have to follow the recommendations of the scientists it hires to test the chemicals.
So, while TSCA gives at least a nod to the “precautionary principle” by asking politely for industry to keep toxic chemicals from coming to market, in reality it’s the same private-profit/public-harm model that the vast landscape of American business operates under.
The Chemical Safety (No) Improvement Act
These are some of the problems Lautenberg’s original bill, the Safe Chemicals Act, sought to repair. But its successor, the Chemical Safety Improvement Act, has shot such giant loopholes through the patches that the fabric looks like Swiss cheese.
Loopholes big enough to drive a truck through include:
1. Replacing the precautionary principle with “acceptable risk.”
Instead of requiring a finding that there is “reasonable certainty that no harm will result to human health or the environment from aggregate exposure to the chemical substance” (as per the SCA), the compromise bill asks only a showing that there is “no unreasonable risk of harm to human health or the environment.” [emphasis added]
What is “no unreasonable” risk of harm? In the case of Tom’s River’s Ceiba Geigy, it was apparently reasonable to allow cancer to gallop through the town’s population of children.
The Orwellian language of risk management that weighs the health of the public, the poor, children and animal species against the corporate bottom line always lays a heavy hand on the latter part of the scale. It also cleverly places any attempt to phase out a harmful chemical right into the gun sights of chemical industry lawyers and the Office of Management and Budget’s cost-benefit bean counters.
2. Replacing cutting edge real world investigation with the outmoded textbook conventions of yesteryear.
The alarmingly increasing incidence of diseases such as cancer, autism and Alzheimer’s cannot be explained away by cheerful explanations like “better diagnoses” and “living longer.” Even obesity is being seen as a cause not only of “lifestyle”, but the ubiquity of hormone-like industrial chemicals that are making our fat cells larger and more numerous.
The understanding is emerging that these growing health crises are being driven by the cumulative assault of hundreds of different chemicals on our bodies. We don’t get exposed just to one pesticide but to many pesticides plus other neurotoxins and carcinogens that have the same effect or harm the same organs, like PCBs and phthalates. We don’t get exposed once, but repeatedly — in some cases constantly — over the course of our entire lives, starting when we are gestating in our mother’s womb.
The SCA would have explicitly acknowledged this — a regulatory first. But the compromise bill is blind to this kind of aggregate or cumulative exposure, ignoring the recommendation of the National Academy of Sciences to take them into account when regulating chemical safety.
3. Making Exemptions Easier, Transparency Harder.
Another loophole yawning in the CSIA is the language on exemptions. The SCA would have required EPA to justify why it was giving a chemical a pass — say, for economic or national security reasons. It would have had to meet the burden of proof. But the compromise bill waves the chemical through only on Scout’s Honor.
Finally, informational opacity (and paucity) is the Achilles Heel of TSCA.
The now-defunct Safe Chemicals Act of 2013 would have required chemical producers to give the EPA specific information that would have made it possible for the agency to evaluate the safety of their products. In other words, it would have unlocked the Catch 22 that has hamstrung the EPA under TSCA.
But the CSIA remains vague on information requirements, allowing the chemical companies to continue to veil the potential hazards of their operations while giving lip service to compliance.
One rubric companies use to keep information from regulators is to claim “confidential business information.” The compromise bill allows those claims to be grandfathered in, thereby giving thousands of potentially toxic chemicals a free pass to continue poisoning our children and us.
There’s much more to this story -- and more may come to light as environmental advocates put the CSIA under their microscopes. Some organizations are lining up to support the bill, reasoning that some reform is better than none. Others take the position that the “compromise” is a bad pun — compromising public health, rather than moving chemical safety reform forward.
The matter is open for debate.
No doubt, many of the compromises were bitter pills Senator Lautenberg felt he had to swallow to give any sort of chemical safety reform a fighting chance of passage in Congress. But I’d be willing to wager that he will be cheering from the Other Side if business leaders, advocates, parents and consumers – and green chemistry entrepreneurs – unite to push Congress to toughen up the CSIA and make it into the kind of bill he could be proud of.