Does TSCA Reform Have a Future?

by Katie Tracy

July 17, 2017

June 22 marked the one-year anniversary of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the first major update to the Toxic Substances Control Act (TSCA) since its original enactment in 1976. The measure set a one-year deadline for EPA to complete several actions to implement the law, including finalizing its procedural rules on chemical prioritization and risk evaluation and releasing key documents related to the initial ten chemicals the agency has chosen to evaluate. (See all implementation activities here.)

One of those initial ten chemicals is asbestos, as it should be, since EPA determined some 28 years ago that there's no safe level of exposure. In fact, based on this evidence, EPA attempted to phase out nearly all uses of asbestos in the United States, but the Fifth Circuit Court of Appeals overturned the ban in 1991. The court said that EPA was required to (and failed to) perform a cost-benefit analysis of all possible alternatives to a ban and conclude based on substantial evidence that a ban was the "least burdensome" to industry of the options that would adequately protect public health. The Fifth Circuit decision affected much more than EPA's asbestos ban – the agency never again attempted to restrict toxic chemicals already in commerce. 

I recently spoke with Charles MacGregor, a Community Engagement Specialist, and Heather Von St. James, an 11-year mesothelioma survivor and advocate, at the Mesothelioma Cancer Alliance (MCA) about their perspective on the TSCA reform law and EPA's latest actions. Here's what they shared with me: 

Q. What is the Mesothelioma Cancer Alliance's core purpose? 

The Mesothelioma Cancer Alliance's core purpose has always been to raise awareness about mesothelioma and to educate people about the dangers of asbestos. We provide our audience with up-to-date news stories about everything from the ongoing EPA evaluation of asbestos to advancements in immunotherapy. MCA gives people information and hope. When dealing with a disease as awful as mesothelioma, hope and information are precious commodities and mean the world to patients and their families. 

In conversations we've had with numerous people, it seems like a majority of them understand that asbestos is unhealthy but don't understand why or how it impacts our daily lives. A lot of people also believe asbestos has already been banned, but that isn't the case at all. Our entire goal with MCA is to teach others about asbestos and why it's imperative the United States take action to see it banned. 

Q. Why is asbestos so dangerous to our health and environment? 

Asbestos is a natural resource found around the world and something we mined in the United States for decades, though mines have been closed in the U.S. since 2002. In most cases, if asbestos is inside your home and it isn't damaged or crumbling, it is generally considered safe. It's what happens when we inhale or ingest the mineral that gives us a reason for concern. For people doing renovations, or if something happens to damage products containing asbestos, it could release the fibers into the air. There's also a grave risk of concern for workers in various industries who previously, or currently, handle the material, including mechanics, pipefitters, and those who served in the military.           

When the tiny, rigid asbestos fibers enter the body, they often end up in the lungs where they may settle. Eventually those fibers could make their way to the lung lining, known as the pleura, where they irritate and inflame the area. Decades after the initial exposure, tumors may begin to develop in the lung lining. In rarer cases, asbestos fibers may travel through the lymph nodes to other organ linings, including the heart and abdomen, causing pericardial and peritoneal mesothelioma. 

Q. Are there any beneficial uses for asbestos, or are there safer alternatives available? 

Although asbestos was, at one time, widely regarded for its ability to withstand heat and its durability, the material has by-and-large fallen out of demand. Today, asbestos use in the U.S. has declined by 99 percent, with only the chlor-alkali industry still making use of raw asbestos during the production of chlorine and caustic soda. In nearly every industry where the material was once king, safer alternatives have been developed and adopted. For example, some companies in the chlor-alkali industry have made the switch to ion-exchange membranes, which are less damaging to the environment and don't use as much energy. The main problem is that those membranes are more expensive, as is the case with many other safer alternatives to asbestos. 

Q. What do you see as the biggest challenge right now when it comes to regulating toxic chemicals in commerce in the United States? 

In our eyes, the biggest challenge currently is simply trying to promote science at a time when information and fact-based reasoning are seemingly taking a backseat to profiteering. The administration in office now has done nearly everything in its power to make sure the EPA has become a public enemy, challenging the rules the agency has set out to protect the air we breathe, the water we drink, and stewardship efforts involving climate change. 

The adversarial stance taken at the expense of health and safety now is something that we're going to end up dealing with for decades. The installation of Scott Pruitt as EPA head and Nancy Beck as Deputy Assistant Administrator in the Office of Chemical Safety and Pollution Prevention is the equivalent of making the executioner the judge. In addition, recently proposed legislation coming out of Congress like the Regulatory Accountability Act and President Donald Trump's 2-for-1 executive order are making an already difficult and slow process even more difficult. Agencies throughout government should be able to enforce and create relevant and prudent rules in a timely fashion, but that cannot reasonably happen when they're working against a stacked deck. 

Q. As you mentioned, President Trump appointed Nancy Beck, a former director of the American Chemistry Council – a powerful lobby for Big Chemical – to serve as Deputy Assistant Administrator of EPA's Office of Chemical Safety and Pollution Prevention. Before working for the ACA, Beck worked in the White House Office of Management and Budget during the Bush administration where she reviewed EPA rules. Do you think her appointment is a conflict of interest that could undermine EPA's efforts to address toxic chemicals in commerce? 

Yes, without a doubt. It is the proverbial fox in the henhouse scenario. She has so many ties to the chemical industry, how can she even begin to be fair? 

From our point of view, allowing someone who only a few months ago was attempting to disprove research methods performed by the EPA and has been a powerful representative for the chemical industry through the American Chemistry Council to be in control is dangerous. Pruitt's appointment to head the EPA was a slap in the face of those who care about the environment, but Beck's appointment, especially considering her history representing the ACC during the TSCA implementation last year, is unnerving at best. It's hard to look at her appointment as anything less than a conflict of interest, especially given her prior involvement with the Office of Management and Budget a decade ago, where she was called out for slowing down the process. 

While we remain hopeful that Dr. Beck will represent the EPA fairly, it's difficult to reconcile her behavior in attempting to delay other assessments of toxic chemicals and undermine the process as a whole. 

Q. Members of Congress opposed to regulations have introduced legislation that seeks to undermine the entire regulatory process. For example, the Regulatory Accountability Act of 2017 would impose dozens of needless hurdles on agencies' ability to issue critical safeguards and enforce existing rules. How would these anti-regulatory bills affect implementation of new TSCA? What does this mean for public health and the environment? 

Legislation like the Regulatory Accountability Act would set up an unbelievable amount of red tape that would all but reverse the work done to revamp the TSCA. In 1989, the EPA tried to ban asbestos and had thousands of pages of studies and evidence proving the material was dangerous. But the rule failed under its own weight and inability to meet its own lofty guidelines to support the rule. That stymied the agency and they did very little to ban any other types of chemicals under the old rules. Last year's amendments to TSCA gave the EPA more teeth but also allowed it to regulate chemicals quicker without having to meet formerly required cost-based decisions, as it was under the old TSCA. 

What the RAA does is essentially revive many of the measures in old TSCA that made it ineffective and clunky. It will force the agency to jump through so many hoops that delays will mount and become their own barrier to rule production. Meanwhile, the RAA's insistence on reinstating a feature allowing for any person to request a hearing regarding any new rule would give anyone who wants to slow down the rulemaking process ample opportunities to challenge and delay the EPA's work. Simply put, the RAA would undo a lot of good that came from last year's bipartisan effort and puts our health and safety at risk. 

Q. Under President Trump's Executive Order 13771, when an agency wishes to issue a new rule, it must identify two existing rules to be eliminated, and those rules must offset any costs of the new rule. How might this affect the risk management requirements EPA selects with respect to a chemical that it has determined presents an unreasonable risk to human health or the environment? Could this result in EPA eliminating other critical safeguards without considering any of the benefits they provide, like clean air or water standards? 

We think the situation becomes dangerous any time you have to pick and choose what rules and regulations you need to keep in order to implement a new one. Enacting a rule banning asbestos should not come at the cost of clean water or air simply because it "balances the budget." The entire point of these regulations is to keep people like you and us safe. The Trump administration is already proposing massive cuts to the EPA's budget, and by forcing it to pick and choose what rules to enforce is, in essence, setting the agency up for failure. 

The EPA staff will always do their best to protect Americans but cannot properly do their job without the support of the administration and its heads. That's not to say there aren't rules and regulations that might be outdated or counterproductive to what the agency hopes to achieve, but to turn everything into a zero-sum game is an approach that could do more harm than good in the long run. 

Q. Do you think EPA has sufficient budgetary resources to implement the new law effectively? 

The budgeting process tends to lend itself to the old adage of "doing more with less," which is a line we hear about fairly often. It has its merits, especially when times are tough and the need to save money is crucial. But we believe the proposed budget President Donald Trump introduced several months ago is a difficult pill to swallow. 

The EPA can implement the new law effectively, provided it has the right amount of resources at its disposal. Cutting a third of the agency's budget is not going to help it implement an asbestos ban, let alone the thousands of other regulations already on the books. Add in a depleted workforce, and you can quickly see little things slipping through the cracks. We think if the EPA's budget stays close to where it is now, the agency will find a way to keep up with the new law effectively. If the 30 percent budget decrease is implemented, we think the deficiencies will very quickly come to the forefront.

Top photo by Alpha, used under a Creative Commons BY-SA 2.0 license.

Tagged as: TSCA asbestos
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Also from Katie Tracy

Katie Tracy, J.D., joined CPR as a workers’ rights policy analyst in May 2015. Her previous experience includes working for more than two years as a regulatory policy analyst at the Center for Effective Government, where she advocated for strong regulations to protect health, safety, and the environment.

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