Chemical industry representatives joined environmental activists in June to celebrate the one-year mark of a major overhaul of the Toxic Substances Control Act—the law that governs the sale and use of chemicals in the U.S. But as summer drew to an end, so did environmentalists’ support for the Environmental Protection Agency’s rules that lay the foundation for how the agency will implement the amended law.
Numerous environmental and public health groups filed six lawsuits against EPA on Aug. 10 and 11, asking federal appeals courts to review the agency’s two rules for prioritizing and evaluating chemicals for their risks to human health and the environment. The court has consolidated the cases into two sets.
In addition, one of the groups, the Environmental Defense Fund (EDF), also challenged a third rule that requires chemical manufacturers and importers to notify EPA of chemicals produced during the past 10 years so that the agency knows what chemicals are in the U.S. marketplace.
At issue are changes EPA made to the three rules after the Obama Administration proposed them in January. The Trump EPA finalized the rules in late June. Environmentalists argue that the agency made the modifications to fulfill chemical industry requests.
Many elements of the three rules are “contrary to law and fail to reflect the best available science,” says Richard Denison, a lead senior scientist with EDF.
EDF and other petitioners are concerned about the agency’s decision not to consider all uses of a chemical, including reasonably foreseeable uses, in its risk evaluations. EPA proposed to do so under the Obama Administration. But in its final risk evaluation rule, the agency states that it does not need to consider all possible uses of a chemical. EPA plans to evaluate only the uses intended by the manufacturer and will regulate other uses separately.
“A determination that a chemical does not present unreasonable risk is to be made on the chemical as a whole, not individual uses,” Denison argues.
The environmental advocacy groups Natural Resources Defense Council (NRDC) and the Alliance of Nurses for Healthy Environments are challenging EPA’s risk evaluation rule for similar reasons. The groups are concerned about EPA using its discretion to determine which uses of a chemical will be considered in risk assessments. Allowing EPA to pick and choose which uses to consider can skew the overall risk posed by a chemical, the groups say.
“NRDC and other public health and environmental groups, as well as the American people, won’t tolerate the chemical industry calling the shots at the expense of our health and safety,” NRDC says. “Our lawsuit is one way we’re making sure that EPA Administrator Scott Pruitt and his chemical-industry cronies don’t destroy our best chance to make TSCA work since it was enacted 40 years ago.”
NRDC, EDF, and a coalition of business and advocacy organizations called Safer Chemicals, Healthy Families are challenging EPA’s rule on prioritizing chemicals for risk evaluation. Although few details about the lawsuits are available, the coalition states, “The rules fail to provide the protections against unsafe chemicals that Congress required in the critical priority-setting and risk evaluation provisions of the new law, which are intended to ensure that unreasonable risks to health and the environment are fully assessed and eliminated.”
The final rules bring back “some of the failures of the original law,” says Andy Igrejas, director of Safer Chemicals, Healthy Families, referring to the outdated 1976 TSCA. The coalition and other environmental groups are particularly concerned about the limited amount of toxicity testing EPA plans to require of manufacturers. “The rules send a strong signal that EPA will require little, if any, testing to fill data gaps on candidate chemicals for prioritization and risk evaluation,” Safer Chemicals, Healthy Families says.
EDF’s Denison is also concerned that EPA is recreating a set of contradictory requirements in the 1976 TSCA. Under the old law, the agency generally could require testing only if the agency had evidence of risk. The amendments to TSCA enacted last year gave EPA new authority to require toxicity data from manufacturers when there are insufficient data to make a safety determination.
“The proposed rules sought to ensure that EPA could use its enhanced authority to develop that information where needed far enough ahead of having to make prioritization decisions and risk determinations that it could still meet the law’s aggressive deadlines,” Denison says. “Yet the final rules seem intent on undermining all this. They seek to cut off early information development and then argue that, given the deadlines, there isn’t time for anything other than very short-term testing.”
EDF is also challenging EPA’s inventory notification rule. The group claims that the rule creates loopholes for companies regarding confidential business information that limit the public’s ability to know what chemicals are on the market.
“The rule would allow companies to assert and maintain claims that do not meet the law’s requirements,” EDF says. “As a result, EPA will be concealing information about chemicals in violation of the public’s right to know.”
EDF and other petitioners allege that the three framework rules were rewritten by Nancy Beck, a political appointee who joined EPA’s Office of Chemical Safety & Pollution Prevention in May. Before joining EPA, Beck served as a senior official with the chemical industry group American Chemistry Council (ACC).
“The final rules largely destroyed the careful balance that characterized the efforts to reform TSCA,” Denison says. “In many respects, the final rules governing how EPA will identify and prioritize chemicals and evaluate their risks now mirror the demands of the chemical industry, reflected in comments they had submitted earlier—some of which Beck herself had coauthored.”
A slew of industry groups, including ACC, support the final framework rules. They are taking an unusual course in litigation and are moving to side with EPA in the lawsuits.
The activists’ lawsuits “are without merit and could jeopardize EPA’s ability to prioritize chemicals for risk evaluation and conduct those risk evaluations of high-priority substances within the strict but achievable time frames” that the law demands, ACC says. “We are disappointed that litigation was pursued as it consumes resources of EPA and stakeholders that could otherwise be dedicated to advancing prioritization and risk evaluations of chemicals in commerce,” the group continues.
EPA is facing a November deadline to file a written defense of its prioritization rule. Dates have yet to be set for cases involving the other two rules. EPA asked the court on Sept.14 to further consolidate the cases related to the prioritization and risk evaluation rules by moving them all under the U.S. Court of Appeals for the 4th Circuit, which is based in Virginia.