By David J. Hayes
June 11, 2020
The U.S. system of environmental laws stands on the broad shoulders of the Clean Air Act, the Clean Water Act and the National Environmental Policy Act. When it comes to protecting Americans from cancer-causing toxic chemicals, pesticides and other hazardous materials, however, our system has come up short. It took many years of dithering before the power industry was forced to reduce toxic mercury air emissions; before EPA began to address chlorpyrifos, Telone and other high-volume pesticides that pose unacceptable health risks to consumers and agricultural workers; and before public health officials acknowledged our nation’s massive lead-contaminated drinking water problem, as tragically spotlighted in Flint, Michigan.
Unfortunately, these high-profile matters represent just the tip of the toxics iceberg. The U.S.’s primary toxics law — the Toxic Substances Control Act of 1976 (TSCA) — focused almost exclusively on evaluating “new” chemical substances prior to entering the marketplace, overlooking continuing risks posed by notoriously dangerous, long-available toxic chemicals such as asbestos and formaldehyde, and powerful solvents like methylene chloride and trichloroethylene (TCE). Even when scientific studies have confirmed significant human health risks from new chemicals, like the PFAS family of “forever” chemicals (per- and polyfluoroalkyl substances), EPA has moved slowly, frustrating state and local authorities concerned about unacceptably high levels of contaminants in their residents’ drinking water.
Recognizing the Toxic Substances Control Act’s failure to adequately protect Americans from toxic chemicals, Congress overhauled the statute by enacting the Lautenberg Chemical Safety Act in 2016. That’s the good news. The bad news is that the incoming Trump administration’s EPA was handed responsibility for implementing it.
Not surprisingly, given the Trump administration’s high-profile targeting of dozens of existing health and safety regulations for elimination, the EPA has shown little enthusiasm in implementing the law. As required by the new law, it has begun to analyze the hazards presented by the most dangerous chemicals in commerce. But its bias against serious public health concerns is showing through.
The agency’s analysis of asbestos-related risks, for example, completely ignored risks associated with the legacy presence of asbestos in countless homes and businesses. State attorneys general blew the whistle on that dangerous omission and the appellate court concurred, upbraiding the EPA and requiring it to redo its analysis. Likewise, the EPA inexplicably greenlighted life-threatening uses of methylene chloride in commercial applications, while disallowing its sale to consumers. Its latest scoping documents for 13 high risk chemicals (including formaldehyde and several phthalates) includes huge gaps in legally required analysis, including major failures to evaluate relevant “hazards, exposures, conditions of use, the potentially exposed or susceptible subpopulations” and the “information and scientific approaches that EPA plans to use in [its] risk evaluations.” And the agency recently admitted that it will not be meeting a key milestone under the new law.
So add these new failures to the EPA’s higher-profile actions that show its consistent favoring of toxic chemicals, pesticides and other hazardous substances over public health.
At the top of that long list is the EPA's spiteful reexamination and unraveling of the power industry’s MATS (Mercury and Air Toxics Standards) rule — against the wishes of the power sector, which already had implemented controls on mercury emissions; its repeated failure to ban the pesticide chlorpyrifos in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children, and despite being ordered by the courts to do so; and its proposed downgrading of the cancer risks of exposure to Telone (also known by its active ingredient, 1,3-D) — “one of the most-used non-organic pesticides in California in terms of total pounds applied for agricultural uses” — despite strong, confirmatory scientific evidence.
Under the radar, millions of Americans continue to face the dangers of toxic chemicals, pesticides and other hazardous substances every day, particularly communities of color and other disadvantaged communities who bear the brunt of these unacceptable hazards. State attorneys general and other advocates will stay on the case, demanding that the administration follow the law and do what’s right.
David J. Hayes is a nationally recognized environmental, energy and natural resources lawyer who leads the State Energy & Environmental Impact Center.