INSIGHT: The EPA Scandal You May Have Missed: Reflections on Two Years of the Lautenberg Act

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Most Americans probably assume the government has certified that the chemicals in the products we make and use are safe. After all, we certainly expect the federal government to play a role in protecting American workers and consumers from toxic chemicals. It may therefore come as a surprise to many that most of the more than 80,000 chemicals available for use today are on the market without any safety review or testing.

The 1976 Toxic Substances Control Act did not require any safety review or testing of chemicals already on the market and in American homes. Nor did it require the Environmental Protection Agency (EPA), the agency responsible for chemical safety, to approve new chemicals before they hit the market. The old rules were so broken that EPA couldn’t even ban asbestos, a killer of thousands of people a year.

Two years ago, Democrats and Republicans came together to improve the way EPA screens the thousands of chemicals to which American workers and consumers are exposed. We worked with the chemical industry and environmental groups to hammer out a compromise, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which promised a major upgrade to chemical safety testing in this country.

The Lautenberg Act tackled two major holes in the Toxic Substances Control Act. It requires EPA to begin evaluating the most dangerous chemicals already on the market and it requires affirmative safety decisions about all new chemicals companies propose to bring to market. The new standard is solely risk to human health; the old standard included non-health considerations such as cost and made it virtually impossible to ban demonstrably dangerous chemicals.

The new law was a big step forward for the health and safety of the American people. We in Congress were looking forward to working with the EPA to implement it faithfully.

Scott Pruitt and Chemical Oversight

Enter Administrator Scott Pruitt and his team, who have consistently undermined the promise of the Lautenberg Act. Pruitt began the attack by installing to oversee implementation of the new law an industry operative with a well-documented history of helping the chemical industry undermine regulation of toxic chemicals. True to that history, the EPA is now methodically weakening implementation of the Lautenberg Act.

The EPA is refusing to evaluate some important ways toxic chemicals are used and the human exposure that results. The EPA’s toxics office won’t evaluate any use of, or exposure to, a chemical that touches on another EPA office’s jurisdiction. That means if a chemical like PFAS—used as a flame retardant and to make water-repellent and non-stick coatings—leaches into groundwater, EPA’s toxics office won’t examine PFAS exposure from contaminated groundwater because EPA has another office that covers water. Research suggests PFAS increases risk of a range of health problems, including cancer.

Then there is asbestos. EPA’s plan for evaluating the risks posed by asbestos specifically excludes exposure to asbestos already in buildings and existing products, or deposited in dumps and landfills. Estimates say asbestos is present in 80 percent of homes constructed before 1980; it is also present in countless commercial buildings. To exclude such a massive source of risk from a critically dangerous chemical flies in the face of everything the Lautenberg Act set out to do.

With respect to new chemicals, the Lautenberg Act requires the EPA to consider all “reasonably foreseen” uses in its affirmative risk determination. However, the EPA has now interpreted the law to cover only “probable” or “likely” uses. This narrow interpretation will countenance serious health risks we sought to cover.

By excluding exposure to contaminated air or water because other EPA offices have “air” and “water” in their title, or by excluding major risks of exposure to carcinogens like asbestos, or by ignoring reasonably foreseeable uses of new chemicals, Pruitt’s EPA is gravely undercutting this historic legislation, and failing to safely regulate the tens of thousands of chemicals on the market.

These changes of course benefit the chemical industry—and that’s precisely the point. The Trump administration and the Pruitt EPA exhibit every sign of regulatory capture. Industry gets to sell potentially harmful products without fear of restrictions. Fossil fuel giants get to produce more polluting fuels. Mining giants get to grab more public lands. The big corporations make big money. The appointees gain political clout and advance their careers. The only ones who lose are the American people.

Pruitt’s refusal to faithfully implement the Lautenberg Act is a scandal. When, at the behest of an industry pursuing profit, executive agencies feel free to ignore the law, we have taken another step away from the representative democracy our Founders envisioned.

In the U.S Senate, Sheldon Whitehouse(D-R.I.) has been at the center of bipartisan efforts to reform the criminal justice system, overhaul federal education law, protect our oceans and coasts, and strengthen our nation’s cyber-security protection. In 2016, his comprehensive legislation to address the nation’s opioid abuse epidemic was signed into law. A graduate of Yale University and the University of Virginia School of Law, Sheldon served as Rhode Island’s U.S. Attorney and state Attorney General before being elected to the Senate, where he serves on the Finance Committee, the Judiciary Committee, the Environment and Public Works Committee, and the Budget Committee.

The opinions expressed here do not represent those of Bloomberg Environment, which welcomes other points of view.

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