Podcast: TSCA was reformed 4 years ago. Is the US chemical law living up to expectations?

This month marks 4 years since the Toxic Substances Control Act, or TSCA, was revised to boost confidence in chemical safety in the US by strengthening regulations. The updated law gave the US Environmental Protection Agency sweeping new authority to ensure that the tens of thousands of chemicals in everyday products do not pose unreasonable risks to human health and the environment. In this bonus episode of Stereo Chemistry, host Kerri Jansen and C&EN senior reporter Britt Erickson examine how the EPA is using that authority to evaluate new chemicals before they hit the market and to assess the risks of chemicals that have been in use for decades. Is the EPA protecting public health by sufficiently evaluating the risks of chemicals, or is it giving industry a free pass to market chemicals with little toxicity data? 

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The following is the script for the podcast. We have edited the interviews within for length and clarity.

Kerri Jansen: Four years ago this month, the US Congress overhauled the Toxic Substances Control Act, or TSCA. That’s the law that governs how chemicals in everyday products are regulated in the US. It was originally designed to protect consumers. And the goal of the more recent changes was to help boost consumer confidence in chemical safety by allowing for stricter oversight.

But the process of implementing those changes has not gone exactly according to plan. When TSCA was revised 4 years ago, the US Environmental Protection Agency was required to choose 10 high-priority chemicals already on the market to evaluate for safety. As we near the deadline set for those risk assessments to be completed, it’s clear that the agency is not going to hit its goals. Not only that, but some now question whether the revisions to TSCA have had their intended effect at all.

In this bonus episode of Stereo Chemistry, we’ll hear from C&EN senior reporter Britt Erickson on the impact of those changes to TSCA. We’ll check in on what progress has been made and discuss where we go from here. I’m your host Kerri Jansen.

Thanks for joining us for this bonus episode, Britt.

Britt Erickson: Glad to be here, Kerri. TSCA is really complicated, so we’ll try to get through it together.

Kerri: Let’s start with the basics. What was TSCA intended to do, and what does it cover?

Britt: Well, TSCA is a 1976 law that gives the Environmental Protection Agency authority to regulate the commercial distribution and use of chemicals in the US. It applies to both new chemicals and chemicals that are already on the market. Now, it’s the EPA’s job to ensure that chemicals do not pose a, quote, “unreasonable risk” to human health and the environment.

TSCA covers all chemicals except for a few categories like drugs, cosmetics, food additives, and pesticides. And that leaves us with about 40,000 existing chemicals under TSCA’s purview. So things like methylene chloride in paint strippers, flame retardants in upholstered furniture and kids’ car seats, dry-cleaning solvents, things like that.

Kerri: So TSCA was established in 1976. Why did Congress decide to change it 40 years later in 2016?

Britt: Well, Congress recognized that there are tens of thousands of chemicals on the market today that have not been thoroughly evaluated for toxicity. So most people assume that chemicals have been thoroughly vetted before they enter the market. But that is not the case. And that has never been the case in the US.

Outside of the US, for example, in the European Union, manufacturers and importers are required to enter safety information into a central database. That regulation went into effect in 2007, and it’s been mimicked by several countries since then. But as EU regulators are finding out, those data are incomplete. And that’s what we’ve been seeing here in the US as well.

Often we don’t find out that a chemical is unsafe until after people start getting sick. That’s the case with asbestos, which was used in construction materials for decades before we realized that it was a carcinogen. So Congress wanted the EPA to have more authority to vet new chemicals before they hit the market and require industry to submit toxicity data when such information is lacking.

The lack of toxicity data is just one of the problems with the old TSCA. Even when the EPA had lots of toxicity data, it was incredibly difficult for it to ban a chemical. It had to weigh the benefits of banning a chemical against the costs of replacing it with something else. And before it could impose a new restriction, it had to prove that other, less-restrictive methods wouldn’t sufficiently reduce the risk. The new law removes those requirements.

Kerri: Can you give me an example of how the new TSCA and the old TSCA differ when evaluating a chemical?

Britt: Let’s take a look at how difficult it was for the EPA to justify banning asbestos under the old TSCA. EPA did ban most uses of asbestos in 1989 under TSCA, because it’s a known human carcinogen. It causes lung cancer and mesothelioma, which is cancer of the lining of organs. But even though the agency had nearly 100,000 pages of documents showing asbestos causes cancer, it was unable to show that the benefits of banning asbestos outweighed the costs. So, asbestos product manufacturers sued the agency, and in 1991, a federal appeals court overturned the ban. Asbestos is often called the poster child for TSCA reform, because it illuminated some gaping holes in the law.

Liz Hitchcock: The failure to protect us from asbestos became a symbol of TSCA’s failure to protect us from other toxic chemicals.

Britt: That was Liz Hitchcock, director of Safer Chemicals Healthy Families, a coalition of health and environmental advocacy groups, speaking during a press briefing on May 28. Hitchcock and many other environmental advocates believe that the EPA is not using its new authority under TSCA to thoroughly evaluate the risks of chemicals.

Liz Hitchcock: The story of old TSCA was that EPA could not protect our families from asbestos. The story of new TSCA under the Trump administration, I fear, is that EPA will not protect us from this deadly chemical.

Britt: In revising TSCA, Congress wanted to address two main areas: to allow for more rigorous vetting of chemicals before they are allowed into the market, and also to change the way risk analysis is done for chemicals that are already on the market. Asbestos is one of the chemicals that the EPA is in the process of evaluating.

Kerri: So asbestos still hasn’t been banned in the US?

Britt: That’s right. Use of asbestos in the US has declined by 99% since the 1970s, when there was extensive litigation around its adverse health effects. But the chemical industry still uses asbestos in electrochemical cells to produce chlorine. Asbestos is also a contaminant in talc, which is found in products such as baby powder and crayons, and it’s used in making ceramics and paint.

Kerri: It sounds like the chemical industry fought pretty hard in 1989, when EPA put a ban on most uses of asbestos, to keep the substance on the market. Did they show the same opposition to the reforms in 2016?

Britt: Actually, no. In 2016, the chemical industry was really concerned about consumers losing confidence in the safety of chemicals. Many states and retailers were starting to ban certain chemicals in products that they were selling, creating a patchwork of state laws. And chemical manufacturers would rather have one federal standard than a whole bunch of different state laws that they have to comply with.

Kerri: So how did the revisions to TSCA change the way the EPA evaluates the risks of chemicals?

Britt: Let’s start with new chemicals that haven’t entered the market. The updated TSCA gave the EPA new authority to ask chemical manufacturers to conduct toxicity tests and share that data. They didn’t have that authority previously. Now remember, this was in June of 2016, under the Obama administration. So at first, the EPA was asking manufacturers for additional data. But what happened is it slowed down the new-chemical approvals. When TSCA was revised, the EPA had about 300 new chemicals under review. By early 2017, that backlog was close to 600 chemicals. So chemical manufacturers were upset. And when the Trump administration came into power, the EPA stopped asking manufacturers for data, essentially rubber stamping new chemicals and allowing them onto the market with very little toxicity data. By August of 2017, the EPA announced that the backlog was gone.

Kerri: So they cut out some of the more time-consuming parts of the review process to reduce delays in approving new chemicals. That benefits the chemical industry. But how has that approach been received outside industry?

Britt: Well environmental groups are not happy. They claim that the EPA’s approach is illegal and it fails to protect public health, as well as it fails to protect workers. So far, none of the new chemicals that have been approved during the Trump administration have been shown to harm people, but such effects often take several years to show up.

So another big issue is that the EPA scaled back the uses of a chemical that it evaluates. Instead of evaluating all possible uses, as required under TSCA, the agency only evaluates uses that were originally intended by manufacturers. So think about a chemical used to coat wood floors. The EPA would evaluate that use only, and if a manufacturer wants to use that chemical for a different kind of coating, they would have to notify the EPA, which may or may not evaluate the new use. So the narrower the set of uses, the less likely the EPA is going to find any risks. That same issue has also cropped up again in the EPA’s evaluations of chemicals that are already on the market.

Kerri: Right, you said earlier that there are tens of thousands of chemicals already on the market that TSCA covers, and we know little about their toxicity. How is the EPA addressing that now?

Britt: So under the old TSCA, EPA did have a plan to assess 90 high-priority chemicals. The revised TSCA directed the EPA to start with 10 chemicals from that list. So that’s what they did; they chose 10 chemicals, and they’re in the process of evaluating those 10 chemicals. The list includes asbestos, the dry-cleaning solvents tetrachloroethylene (or PERC), and trichloroethylene (TCE), and the pigment violet 29, which is used in paints and to dye fabric. Those 10 chemicals were chosen because of their potential for both high toxicity and high exposure.

Kerri: So where do things stand with the EPA’s evaluation of the risks of those 10 chemicals?

Britt: Well, the EPA has released draft risk assessments for all 10, but it has yet to finalize any of them. In May, EPA administrator Andrew Wheeler told Congress that the agency would probably not meet its deadline, which is this month. Here’s a clip from that Senate hearing.

Andrew Wheeler: So our deadline for the first 10 risk evaluations is June 22. I don’t know if this will make you feel better or not, but we probably will not meet that deadline as of this point. We are spending more time on the first 10. We want to make sure that we get them right.

Britt: He goes on to say that the EPA is likely to finalize 2 of the 10 assessments by its June deadline and the rest by the end of this summer.

Kerri: Why is it taking so long?

Britt: You know, that’s not entirely clear. Under the revisions to TSCA, the EPA has 3 years to evaluate risks of a chemical that is already on the market once the EPA deems it a high priority. That process involves getting public comments, and the EPA is required to get input from an advisory committee. EPA officials have said that certain parts of that process have taken longer than expected. Now, whether those are legitimate complications, such as the unavailability of advisers during the COVID-19 pandemic, or simply delaying tactics is something environmental groups have questioned.

Kerri: What’s been the reaction to the draft assessments for these first 10 chemicals?

Britt: There has been mounting criticism from environmental groups and EPA’s advisory committee of external experts, which is a group of professionals in risk assessment and toxicology. One of the big concerns, like we talked about with the new chemicals, is that the EPA excluded certain uses from its evaluation, which minimized the risks that it found. For example, the EPA did not consider the risks of the solvent 1,4-dioxane in plastics and other consumer products, or that it contaminates many drinking-water sources. Environmental groups are expected to challenge the EPA’s assessment, if its final assessment does not include such uses.

In contrast, the chemical industry has been quite happy with the way EPA is handling its assessments. But they do have a few concerns, too. For example, the EPA’s draft evaluation of the current uses of asbestos found unreasonable risks for almost all applications, including the use of asbestos to produce chlorine.

Kerri: So is the EPA closer to banning asbestos now?

Britt: So, we’re still a few years away from any potential ban. If the EPA does conclude in its final assessment that there are unreasonable risks to using asbestos, then it will have 2 years to manage those risks. That could mean either a ban on asbestos or restricting certain uses of asbestos. Democrats in Congress, however, have introduced a bill to ban asbestos, and if that passes, it would expedite the process. But as long as the EPA is running the show, a ban is at least a couple of years away. So that’s a big limitation of the current system, that even if the EPA determines a chemical is not safe, it might stay on the market for up to 2 years. It’s not exactly a fast process.

Kerri: What about the rest of the 40,000 or so chemicals on the market? What happens with those?

Britt: The EPA has already selected the next 20 high-priority chemicals to evaluate after the first 10. The agency has released draft scoping documents, which are supposed to define what uses will be evaluated, for those 20 chemicals.

Environmental groups are very concerned, because the EPA did not identify which hazards, exposures, and susceptible subpopulations it will consider in the evaluations. The agency says it will release those details later. So it essentially denied the public an opportunity to comment on anything meaningful related to the scope of the evaluations.

Another complication is, who’s gonna pay for all of this? The EPA relied on taxpayer money to conduct the first 10 evaluations, but chemical manufacturers will have to pay for the next 20. As you can imagine, it is not clear on how these fees will be divvied up, because there are multiple manufacturers for some of the chemicals. And in some cases, companies might emit a chemical without actually being a manufacturer of it. For example, the EPA’s initial list of potential formaldehyde manufacturers included a poultry farm, a large brewery, a sugar manufacturer, and the vehicle manufacturer General Motors. Those companies do not manufacture formaldehyde, but they emit large quantities of it. So there’s a lot of confusion about who is going to have to pay.

Kerri: So it sounds like there are many details that still have to be worked out in this process. But despite those bumps in the road, do you think those changes have had the intended effect, boosting confidence in the safety of chemicals?

Britt: I don’t think so. The EPA is typically not asking chemical manufacturers to provide toxicity data, particularly for new chemicals. If the agency doesn’t have sufficient data, how can it ensure those chemicals won’t pose unreasonable risks? The reason we have 40-some thousand chemicals on the market that need to be assessed for their potential toxicity is because the old TSCA made it difficult for the EPA to ask for that data. Now, the agency can request the data, but it is choosing not to.

Kerri: Now, looking forward—there’s an election coming up in November. If we have a change in administration, do you think the EPA will change its approach to evaluating chemical risks?

Britt: That’s an interesting question. If we look back at how the EPA first began implementing changes to TSCA under the Obama administration, it offers clues as to what to expect under a new administration. I would predict that the EPA would do a more thorough job and evaluate more uses of a chemical than it is currently doing. The agency is likely to request more toxicity data from chemical manufacturers to close some of the data gaps. Now, that could mean we go back to having a backlog. We could also see a new administration finalize some of the proposed bans that were issued during the Obama administration on chemicals such as trichloroethylene in aerosol degreasers and stain removers used in dry cleaning.

If the current administration stays in power for the next 4 years, I think we’re not likely to see many changes to how the EPA is implementing TSCA. It’s very unlikely we would see many chemicals banned at the federal level. It would take a court order or an act of Congress to do that. So in the meantime, people will continue to be exposed to chemicals with unknown risks.

Kerri: Well, thank you, Britt. It’ll be interesting to see how all of this plays out. And whether asbestos ever gets banned—it’s such a saga. I’ll look forward to seeing your continuing coverage in C&EN.

Stereo Chemistry is a production of C&EN, the newsmagazine of the American Chemical Society. This episode was written by Britt Erickson and produced by me, Kerri Jansen. It was edited by Jyllian Kemsley and Lauren Wolf.

The music in this episode is “No Time to Explain” by Stanley Gurvich.

Stereo Chemistry will be back with a new episode next month. You can subscribe on Apple Podcasts, Google Play, and Spotify.

Britt: Thanks for listening.