How 2019 laid the groundwork for change in the chemical industry

Workers spraying herbicides on farmland.
ShutterstockKaentian Street
Workers spraying herbicides on farmland.

The unmistakable signs of a growing resistance to the continued poisoning of the American (and global) public by toxic chemicals were evident in 2019. While federal toxics policy remains mired in year three of the dismal Trump administration, activities in the states, the courts, Congress and the marketplace all signal that the chemical industry’s current appearance of dominance is tenuous and temporary. A seismic shift in the public’s acceptance of daily exposure to carcinogens, developmental toxins and endocrine disrupters — in our air, food, drinking water, cosmetics, furniture and household products — is just around the corner.

When it comes, elected officials and corporate executives will scramble to keep up with the public’s concerns — and finally will distance themselves from fealty, or at best, passivity, to the continued bad faith policies and politics of Dow, DuPont, Monsanto, Exxon and the other chemical giants they have catered to for so long. Science and health — both under attack by the chemical industry with the aid of the Trump administration — are due for a comeback in the year(s) ahead. A few of this year’s important developments in toxics are summarized below.

Chlorpyrifos

After a decade of scientific review (prompted by a petition from NRDC and Pesticide Action Network), EPA under the Obama administration proposed a ban on chlorpyrifos, a deadly neurotoxic pesticide, based on evidence of neurological harm in children exposed during fetal development. One of the Trump administration’s first and worst environmental actions was to reverse course and walk away from the proposed ban, leaning on the industry-favored excuse that the science was unsettled.

Chlorpyrifos was an early sign that the new "populist" administration would take its cues strictly from the nation’s biggest chemical companies. Continued poisoning of rural communities, and the food supply, has followed.

In the face of federal inaction, in 2019 three states — Hawaii, California and New York — took steps to protect people by cancelling chlorpyrifos uses, with more states likely to follow.

A properly functioning system to protect the public from dangerous chemicals would not necessitate a years-long petition process (which lasted through the entire Obama administration), followed by years-long litigation (ongoing) and years-long state-level advocacy in parallel. But, that’s the system we have. 2019 will be remembered as the tipping point when chlorpyrifos started its final deserved slide into oblivion, joining all the other organophosphate pesticides deemed too toxic to be used.

In 2020, a federal court in San Francisco will hear oral argument in NRDC’s legal challenge to the EPA’s continued approval of another organophosphate in pet products (flea collars, powders). Tetrachlorvinphos (TCVP) — like its toxic cousin chlorpyrifos — has been shown to harm children's brains, and exposure is up to 1,000 times greater than levels EPA considers safe. Our legal challenge, as well as pressure on companies carrying products containing TCVP, will be a toxic story to watch in 2020.

Toxic solvents, asbestos and everything else

The Trump EPA’s policies are failing with science reviewers and the courts. In 2016, Congress enacted major revisions to the Toxic Substances Control Act (TSCA). The revised law requires EPA to comprehensively evaluate chemicals to determine whether they pose an unreasonable risk to human health or the environment. The law further requires the agency to consider and protect vulnerable populations — such as children, workers and people subject to disproportionate exposure to chemicals — in its analysis.

Congress directed the EPA to establish overarching "framework" rules for how it would prioritize chemicals for evaluation, and how it would conduct its risk evaluations, and to jump start the process by selecting 10 chemicals to be evaluated by the end of 2019 (with an option for a six-month extension). EPA proposed strong framework rules and announced the list of its first 10 chemicals for review at the end of 2016.

In 2017, when Trump took office, the chemical industry was rewarded with one of its chief lobbyists, Nancy Beck, being placed in charge of EPA’s Toxics Office. The early results of that decision were chronicled in a widely read and still relevant article in the New York Times in October. After three years of industry-written chemicals policy being promoted by the Trump EPA, the scientific advisory committee reviews from scientists, doctors and health professionals are starting to trickle in and they have not been kind to the industry/administration approach to administering the new law.

EPA has released draft risk evaluations of six of the first 10 chemicals to be reviewed under the revised law including for the following toxic solvents: methylene chloride (also called dichloromethane); n-methylpyrollidone (NMP); 1,4 dioxane; and 1-bromopropane (1-BP). Each has been peer reviewed by EPA’s own Science Advisory Committee on Chemicals (SACC), whose reports read like that school report card that you hoped the dog would eat before your parents read it. The peer-review panel repeatedly has blasted EPA’s Toxics Office for its flawed assessments that downplay or even bury the health and environmental risks posed by these toxic solvents. Any regulatory actions from these industry-biased assessments could be expected to put people in harm’s way, while protecting corporate profits and avoiding liability. 

EPA has yet to issue a final evaluation of any of the first 10 chemicals (they’re all due by June), so it isn’t clear how the agency will respond to the recommendations from the peer review panel. It’s an ominous sign that EPA has hinted that it will avoid further review by the panel for the four chemicals not yet made public — including blockbuster toxic chemicals trichlorethylene (TCE), tetra- or per-chloroethylene (PERC) and asbestos.

If EPA cannot bring its risk evaluations at least up to the standards set by the SACC review panel, it will be highly vulnerable to legal challenge — particularly given the law’s mandate that EPA rely upon the "best available science" in reviewing the chemicals. Currently, EPA is not even close to meeting this standard.

Meanwhile on the overarching "framework" rules, the Federal Court of Appeals for the 9th Circuit in November rejected two key elements of EPA’s approach:

  • First, disallowing EPA from refusing to consider so-called "legacy" uses of a chemical — such as the asbestos that still exists in buildings and schools all over the country — in evaluating whether the chemical poses an unreasonable risk.
  • Second, reading EPA’s regulations to require that the agency consider all uses of a chemical, including those that are reasonably foreseeable, and not being able to pick and choose which uses it wanted to evaluate.

It is difficult to overstate the significance of this ruling for the industry’s preferred, Beck-designed approach to administering TSCA: The court just flattened it with one punch. EPA has yet to get off the mat and articulate how it will respond to the court’s decision.

Amazingly, Beck may be rewarded for her heavy-handed and embarrassing failures at EPA with a nomination to chair the Consumer Product Safety Commission. Beck’s nomination process in the U.S. Senate will be an important toxics story to watch in 2020.

PFAS 'forever' chemicals

Chemical giants DuPont and 3M have poisoned all of us for decades with non-stick/non-stain "Teflon" chemicals used widely in consumer and military products and linked to a wide range of health effects including cancer of the kidneys and testicles, thyroid disease, pregnancy-related hypertension, damage to the liver and immune system and developmental harm. The chemicals are in the drinking water of millions of Americans — and estimates surely undercount as monitoring of drinking water has been limited. The widespread use of PFAS chemicals — of which there are thousands — means that Americans are continually exposed.

Despite its periodic self-congratulatory press releases, the Trump administration has done nothing for the public. In contrast, for polluters, the White House helped delay the public release of a draft report from the government public health agency, the CDC, that made a scientific argument that EPA’s established Health Advisory was unsafe. Sadly, previous administrations also have failed the public badly on this issue, due largely to pressure from the chemical manufacturers and the military and its contractors.

In response to the outrage of constituents (voters) in both Democratic and Republican Congressional Districts, several important policies recently were enacted with bi-partisan support, as part of this year’s Defense Authorization bill. The new provisions — which will increase public reporting on releases of PFAS into the environment, require more monitoring of drinking water supplies and reduce the use of the chemicals in fire-fighting foam (a common use that pollutes waterways) — are all important initial steps to fix a few of the many holes in federal law and policies that have helped create the crisis.

More is needed, including increased authority to regulate the discharge of PFAS to waterways under the Clean Water Act; classification of PFAS as hazardous material under Superfund to compel clean-up of contaminated sites; and a ban on the introduction of new PFAS into commerce, or the new use of existing PFAS under the Toxic Substances Control Act, to shut off the pipeline of PFAS chemicals. That’s just a short list. More needs to be done, including adopting Polluter Pays legislation that will hold the manufacturers of PFAS accountable for the cost of cleaning up the environment, including our drinking water.

But nobody believes that the current Congress (due to Senate intransigence) or the Trump administration will fix a problem, follow the science or protect public health. Thankfully, states have begun to enact strict drinking water standards and ban the most prominent and problematic uses of PFAS in products, such as Washington’s 2018 ban in fire-fighting foam and food packaging. Product manufacturers are also feeling consumer pressure as evidenced by the recent announcement that both Home Depot and Lowe’s will stop selling all carpets and rugs that contain PFAS.

The end-of-the-year release of the movie "Dark Waters" tells the disturbing story of the genesis of public understanding about the harm caused by PFAS — and the appalling cover-up by DuPont of its contamination of the drinking water in Parkersburg, West Virginia. Movies such as this one spread the understanding of this issue beyond those communities across the country that are already aware that they have a contamination crisis on their hands. It is a strong movie of a very disturbing (but ultimately familiar) story: the chemical industry poisoning the public, hiding or downplaying what it knows about the danger of its products, and both the state and federal government doing essentially nothing to protect the public. But, because these are "forever" chemicals, the political problem they have created by contaminating communities across the country may also be "forever." The very thin silver lining to this avoidable disaster is that politicians at all levels ultimately may be compelled to change the law and amend policies to address the crisis, prevent future crises and hold the companies that are responsible accountable.

In 2020, many PFAS stories will follow. Pressure on Congress to address the PFAS crisis will increase. Meanwhile, states will adopt strong drinking water standards, and both retailers and manufacturers act to eliminate the sale of commercial and consumer products containing PFAS.

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