How Congress Is About to Make It Easier for Chemical Companies to Poison Us

By Claire Bernish

In the United States, we have become so inured to ironically-titled legislation, the majority of us simply assume legislators find dystopic, tongue-in-cheek humor in toying with our hopes — think: USA Freedom Act, the sole freedom of which lies in the government’s green light to spy on the populace however it chooses. Similarly, a set of bills purporting to reform the 1976 Toxic Substances Control Act makes no exception to that practice, as the Senate’s version, The Frank R. Lautenberg Chemical Safety for the 21st Century Act, bears the name of the late New Jersey senator who espoused strong environmental policy.

But these bills do anything but protect the environment or the people; in fact, states would have a far more difficult time regulating dangerous chemicals on their own, and would be prohibited entirely from doing so while waiting for often snail-paced evaluation by the EPA.

Maine’s 2008 Kid Safe Product Act could serve as an excellent example for potential pitfalls in these ostensible improvements. Though the state has since used that law to list over 1,700 “chemicals of concern” and has required manufacturers to divulge when they employ some of those — even prohibiting the use of other toxic substances altogether when safer alternatives exist — the federal bills would nullify such vital protections in certain scenarios.

Polybrominated diphenyl ethers (PBDEs) are flame retardants found in everything from foam furniture cushions to plastic housings for TVs, computers, and electronics. PBDEs are also common in automotive parts and children’s toys. Their chemical structure closely resembles notoriously toxic PCBs, dioxins, and furans, and can leach and evaporate into the environment over time. This process “has led to rapid bioaccumulation” in fat tissue of humans and animals. Since their discovery in living organisms in 1981,

[T]hey have been found in birds, fish, shellfish, amphibians, marine mammals, sewage sludge, sediments, air samples, meats, dairy products, and even vegetables in numerous North American and European locations, as well as in Japan. Most alarming, however, has been their discovery in human blood, fatty tissue, umbilical cord blood, and breast milk in every region where scientists have conducted studies. Furthermore, in many areas, concentrations have been increasing exponentially.

PBDEs are linked to low birth weight, thyroid disruption, and permanent behavior problems and brain damage; but there is a dearth of investigation — despite suspicion — concerning potential carcinogenic properties. Though no current federal regulations are in place for PBDEs, California imposed restrictions on their manufacture and distribution and Maine has banned them altogether.

Bisphenol A (BPA) is the ubiquitous “principle building block of polycarbonate plastic” used “in the resin lining of all food and beverage cans.” It can be found in a wide assortment of products from baby bottles and sippy cups to dental fillings and medical devices. It can even be found in cash register receipts. But its widespread use doesn’t equate with safety, as BPA is linked to a number of health problems and is a likely human carcinogen. As the Natural Resources Defense Council stated, “More than 90 percent of the general population has BPA in their bodies.” Maine led the nationwide effort to rein in use of the toxic substance, which received so much attention even “the giant toymaker Hasbro wound up removing BPA from all its products,” reported The Intercept.

There are several ways proposed reforms to the TSCA could undermine consumer safety. Of particular concern would be the inability for states to enact regulations while waiting for the EPA to complete investigations into substances’ toxicity — PBDEs and BPA are still under consideration, for example. Though some already-established restrictions on certain chemicals would be allowed to remain in place, once the EPA lists others on its “priorities list,” states would be prohibited from imposing such rules — and then, the EPA has seven years to take action on a harmful substance. Most disturbingly, that prohibition on state action would remain in place even in cases where the EPA fails to take any action whatsoever.

Further, if the EPA does find a substance to be harmful, before federal restrictions can be imposed, the agency must offer evidence the product containing it causes “significant exposure” — a nebulous term left undefined, and thus open to interpretation, in the bill.

“No terms defined here, nor is the scope of products spelled out,” explained Mike Belliveau, Executive Director of the Environmental Health Strategy Center. “Again, data gaps on chemical use often prevent EPA from … knowing which products are the worst offenders. If the chemical is unsafe, EPA should have freedom to restrict any source, without having to conduct a second safety assessment just on products.

“If the bill stands, expect a classic move from the industry playbook. They’ll disaggregate the risk into smaller and smaller categories until nothing is ‘significant.’ Or they’ll sue EPA for failing to meet its new burden [of proof].”

If consumers were hoping for relief via EPA restrictions on chemicals already known to be hazardous, it won’t come from this ‘reform’ legislation. Of some 62,000 chemicals grandfathered into the original TSCA — and an additional 20,000 that have come to market since, without sufficient safety and health assessments — at least 2,000 are known to be hazardous. With stipulations in the proposed Lautenberg reforms requiring only 10 dangerous chemicals be tested in the first year, and just 25 every three to five years after that —  “[a]ssuming no delays, it will take EPA about 400 years just to assess the safety of the chemicals we already know are dangerous to human health and the environment.”

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If a toxic substance somehow jumps through all these hoops and winds up banned by legislation, foreign companies seeking to import products containing that substance won’t have much difficulty doing so. Not only would the EPA be required to assess the health risks of that specific product, it would also have to determine whether restricting it would be considered an impediment to trade and commerce. Regardless of the substance’s status as illegal, there would be no mandate for importers to certify their products don’t contain it.

Is it any wonder chemical groups and their lobbyists have been eagerly pushing to reform the TSCA?

In fact, as SFGate discovered, the legislation’s digital footprints point to none other than the American Chemistry Council, “the leading trade organization and lobbyist for the chemical industry.”

“We’re apparently at the point in the minds of some people in the Congress that laws intended to regulate polluters are now written by the polluters, themselves,” said president of the Environmental Working Group, Ken Cook.

Senators David Vitter and Tom Udall may be responsible for authorship of the bill, but according to an article in The New York Times, “Udall’s political supporters now include the chemical industry, which has donated tens of thousands of dollars to campaigns and sponsored a television ad that praised his leadership.” And though the senator has been chief negotiator for the bill, “Some of Mr. Udall’s Democratic Senate colleagues and prominent environmentalists say he has helped the industry write new regulations in a way that protects profits more than people’s health.”

Though digital signatures can be changed, as ACC spokeswoman and vice president Ann Kolter told SFGate, Cook and Senator Barbara Boxer’s office both claimed their copies of the bill bore the same electronic signature. As SFGate reported, a Senate IT staffer told Boxer’s office, “We can confidently say that the document was created by a user with American Chemistry Council. Their name is specified as Author and their Organization is specified as American Chemistry Council.”

Cal M. Dooley, former representative from California who is now lobbyist for and president of ACC, which represents Dow, DuPont, and other behemoths of the $800 billion-per-year chemical industry, said of Udall, “The leadership he is providing is absolutely critical.”

As Belliveau explained, the past decade has seen 35 states pass restrictions on harmful chemicals “in household products, such as mercury thermometers, toxic flame retardants in couches and televisions, lead and phthalates in toys, BPA in baby bottles and cadmium in jewelry. State leadership on chemicals has protected the public in the absence of federal leadership and driven the chemical industry to the TSCA reform table.”

Unfortunately, many of those efforts will be undermined by the attempted covert marriage of that industry and the very leadership supposedly tasked with being its watchdog. How Congress manages to put profit and capitulation to industry interest ahead of public health and safety is unconscionable — yet apparently it’s the strikingly bold reality of life in U.S., Inc. As Belliveau lamented:

In either case, the bill makes it harder to regulate consumer products that are a known source of chemicals that fail the safety standard.

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