Five Years of Missed Opportunities

• Author: Bob Sussman
• Position: Principal of Sussman & Associates
• Pages: 58-58

58 | THE ENVIRONMENTAL FORUM Reprinted by permission from The Environmental Forum®, May/June 2021.

Copyright © 2021, Environmental Law Institute®, Washington, D.C. www.eli.org.

THE DEBATE

Predictably, the Trump EPA

opted for the appearance rather

than the reality of chemical risk

reduction, and the industry pub-

licly touted the program’s success

— while working behind the scenes

to protect its chemicals from mean-

ingful regulation. For four years,

the Trump EPA went through the

motions of creating a functioning

program while making questionable

legal, scientic, and policy calls that

favored industry at the expense of

at-risk communities.

With new EPA leadership under

President Biden, frustrated advocates

have now called for reprioritizing

EPA’s public health mission over ac-

commodation of industry. e start-

ing point in building a better TSCA

program is understanding where the

Trump EPA went wrong, and how

the tools in the new law can be used

more eectively.

e central innovation of the

Lautenberg Act is a requirement

to conduct comprehensive risk

evaluations of high-concern or

high-exposure substances in order

to identify unreasonable risks of in-

jury, and then eliminate them using

EPA’s regulatory authority. Congress

directed the agency to immediately

begin work on evaluating 10 chemi-

cals; completing these evaluations

has been EPA’s primary task over the

last ve years. All 10 have now been

assessed and determined to present

unreasonable risks of injury, con-

rming the central premise of TSCA

reform that many widely used

chemicals have been poorly assessed

and inadequately controlled.

At the same time, EPA’s indepen-

dent Scientic Advisory Committee

on Chemicals faulted the 10 evalu-

ations for serious gaps and limita-

tions and expressed concern that the

agency was understating risks and

overlooking vulnerable subpopula-

tions which the law required it to

protect. ese aws reected unwise

and often unlawful policy choices

by the agency’s political leadership

that detracted from the hard work

of many career scientists who toiled

around the clock to complete the

evaluations by management’s dead-

lines.

One example is the failure of

the evaluations to account for the

presence of the 10 chemicals in air,

surface water, drinking water, and

waste. Carcinogens like methylene

chloride and trichloroethylene are

pervasive in the environment. Levels

found in air and drinking water ex-

pose millions of people to elevated

cancer risks. Large segments of the

population are also exposed to these

chemicals when using consumer

products or during their jobs.

e overall cancer risk they face

is a function of total exposure from

multiple pathways. But this risk

will be understated if the evaluation

excludes important contributors to

exposure and fails to aggregate ex-

posures across pathways. e losers

from this approach will be the sub-

populations at greatest risk, people

who live and work in communities

with the highest exposures.

e agency has argued that it is

unnecessary for TSCA to address

the presence of unsafe chemicals

in the environment because other

laws perform this function. How-

ever, these laws are narrow in scope,

provide less protection than TSCA,

and in many cases have simply not

addressed air emissions or drinking

water contamination that endangers

public health. TSCA is unique in

its ability to provide a comprehen-

sive picture of chemical risk across

conditions of use and environmen-

tal media, and drive reductions in

exposure that EPA’s stovepipe envi-

ronmental programs cannot achieve

alone. is ability to evaluate and

address chemical risks holistically

should play a central role in the

Biden EPA’s eorts to revitalize the

law.

Rebuilding the TSCA program

will not be easy but must be a top

priority of the EPA administrator.

Bob Sussman is principal of Sussman & As-

sociates.

Five Years

of Missed

Opportunities

By Bob Sussman

Passage of the Lautenberg

Chemical Safety Act in 2016

was a rare moment of bipar-

tisan agreement in the increas-

ingly fractured politics of environ-

mental protection. Congress united

around the simple proposition that

the 1976 Toxic Substances Control

Act was broken and regulation of un-

safe chemicals had reached a dead end.

But this seeming consensus

masked dierent motivations for x-

ing TSCA and conicting visions of

what a new law would accomplish.

NGOs demanded action on a long

list of chemicals that threatened

health and the environment and

wanted them removed from com-

merce or severely restricted without

delay. Facing attacks on its products

and operations, industry wanted to

defuse public concerns about chemi-

cal safety by pointing to a more

robust federal program and at the

same time create a bulwark against

activist states and NGOs.

Whether industry would actually

put its products and prots at risk to

earn public condence was conve-

niently ignored, as Congress closed

ranks to get the new law across the

nish line.

Once TSCA took eect, however,

conicts immediately surfaced. e

new law gave EPA broad authorities,

but much depended on the willing-

ness of the agency to implement

them forcefully. With strong direc-

tion from the top, the new TSCA

could produce tangible public health

protection, but it was all too easy for

weak leaders to create the illusion

of progress by measuring success

through bureaucratic activity (such

as meeting statutory deadlines)

rather than improvements in chemi-

cal safety.