The Laws That Fail Us, and a Better Way
- Part 8

Erika Schreder has worked for the Washington Toxics Coalition as a staff scientist since 1997. She has a master’s degree in resource ecology and management and a B.S. in molecular biology. She currently directs the Clean Water for Salmon campaign, which aims to end pesticide uses that pollute water and threaten salmon.

Editor’s Note: Whatcom Watch will publish most of the 64-page report “Pollution in People” released May 2006 by the Toxic-Free Legacy Coalition. The entire report is available as a pdf file at http://www.pollutioninpeople.org.

There is no denying that toxic chemicals have set up shop in our bodies and homes — without our permission. Teflon chemicals that can cause cancer. Pesticides that harm the nervous system. Phthalates that threaten fertility. Flame retardants that accumulate in our tissues. And persistent chemicals, banned for 30 years, still contaminate some of our otherwise most nutritious foods.

Companies like DuPont, 3M and Monsanto undoubtedly chose these chemicals for their effectiveness and durability. They discovered that they could use fluorine, for example, to create products that make red wine run off of a couch instead of staining it, or let pancakes slide from the pan instead of sticking to it. Such products and others — plastic toys for infants, insect spray for our yards and the fire-resistant PCBs that once cooled machines — seem to work great. And the average consumer is justified in believing that government agencies have tested and approved all of these products, and that their use is safe.

These companies did not, however, create products that serve a purpose without leaving a toxic legacy in their wake.

Neither manufacturers nor government agencies took the time to ensure that these products are safe for our bodies and the environment. Government agencies rarely require toxicity testing, and even when they do, they do not reject chemicals linked to serious health problems. In the end, we end up saddled with toxic problems, like fish we can’t eat and flame retardants in our breast milk and blood.

In this laissez-faire system, government action to protect the public is extremely rare, even when things go awry. The EPA intervened to ban DDT and PCBs in the 1970s, but since then has stopped only five chemicals under the weak law that governs toxic chemicals in the United States (Wilson 2006).

Under this law, the Toxic Substances Control Act (TSCA), EPA considers the vast majority of chemicals safe until they are proven dangerous. New chemicals do not go through a regular screening process to determine health threats, and the law does not give EPA authority to require toxicity testing to produce the information it would need to assess health threats.

In many ways, little progress has been made since Congress passed TSCA in 1976. Of the 81,600 chemicals used in industry today, 62,000 were already in production in 1979 when the law was implemented. Congress included measures in TSCA to protect chemicals already in use when the law was implemented. These exempt chemicals make up 92 percent of today’s high-use chemicals, those produced or imported at more than one million pounds each year (Wilson 2006). EPA faces substantial legal hurdles if it attempts to restrict any of these 62,000 chemicals.

The situation is only slightly better for chemicals introduced after 1979. Manufacturers don’t need permission from EPA to produce a new chemical, but they are required to notify the agency and provide any available information on harmful effects. If EPA finds that a chemical presents an unreasonable risk to health, the agency can take action to restrict the chemical before it goes into production. EPA placed restrictions on 3,500 chemicals between 1979 and 2004, a figure that represents fewer than 10 percent of the chemicals that came to market during that time.

Once a chemical is in production, EPA may only restrict its use when a number of conditions are met. First, the agency must demonstrate the chemical’s negative effects on human health and the environment. Second, it must assess the chemical’s benefits and demonstrate that substitutes for its uses are available. Third, EPA’s action must constitute the least burdensome requirement that will be sufficiently protective. Finally, EPA may restrict a chemical only if no other law can adequately address the hazard. Under this system, top protections don’t go to people — they go to the chemical.

EPA may require health-effects testing only when it has already demonstrated that a chemical poses an unreasonable risk to health or the environment, or that it will be produced in quantities likely to result in substantial human or environmental exposure (GAO 2005). EPA has used this authority for only 200 of the 81,600 chemicals currently registered for use (GAO 2005, Wilson 2006).

Even when it has information on a chemical’s potential health effects, EPA cannot share it publicly or with state government agencies because the law allows companies to claim such data as confidential business information. This secrecy creates stumbling blocks for state agencies seeking to safeguard health and for manufacturers making decisions on which chemicals to use.

The federal law governing pesticides takes a different approach, but in many ways arrives at the same destination. EPA has historically regulated pesticides under a risk/benefit standard, under which the agency must allow a pesticide for use if its economic benefits outweigh its health risks.

In 1996, Congress passed the Food Quality Protection Act, which established different requirements for pesticides used in food production. Under this system, pesticide manufacturers submit voluminous reports on pesticide toxicity, generally including tests on the chemical’s acute toxicity, likelihood to cause cancer and ecological effects, which EPA then uses to assess the level of risk to health posed by the chemical’s use.

Although this process often places restrictions on pesticides, it has not eliminated the use of many pesticides linked to serious health problems, such as carbaryl. Despite the fact that carbaryl is known to harm the nervous system and is considered likely to cause cancer, EPA’s recent assessment allowed the pesticide to remain on the shelves.

Some of its uses, such as flea treatment, have been banned, but the pesticide is still sold in 10-pound bags to be sold and spread on lawns, and it’s used extensively in agriculture. The result is that we continue to be exposed to this dangerous pesticide, despite its subjection to a process intended to weed out harmful chemicals.

With federal regulations failing, Washington state agencies face significant challenges in their efforts to protect health and the environment from toxic chemicals. When they have attempted to reduce or eliminate exposures to a specific chemical, such as the toxic flame retardants (PBDEs), they’ve found that they have neither the information nor the power they need to take prompt action.

When these agencies have been successful in restricting a chemical, they’ve found that they lack the resources necessary to help businesses adopt safer practices and choose safer materials.

In 1998, Washington state adopted a groundbreaking policy to eliminate persistent toxic chemicals. To carry out this policy, the state Departments of Health and Ecology have developed “chemical action plans,” which evaluate the exposures, uses and toxic effects of a chemical, and its potential alternatives. This process has brought important information gaps to light.

While attempting to determine the availability of safer alternatives to deca-PBDE, for example, the departments had no access to basic data on persistence, bioaccumulation and toxicity of alternative chemicals. The state resorted to computer modeling to predict the alternative chemicals’ behavior, but this solution was far from perfect.

State agencies have been further frustrated by the lack of information about which companies use what chemicals, and which chemicals end up in a company’s final products. This information gap is highlighted when agencies attempt to control specific chemicals, such as PBDEs or lead, and find that they must either conduct their own testing or beg companies for information. Without access to this information, agencies are limited in their ability to assist industry in reducing pollution or switching to safer materials.

While Washington state has a policy and rule to phase out persistent toxic chemicals, the state regulatory agencies, with limited exception, lack the regulatory framework to act quickly to ban the sale of products containing these chemicals or others that threaten human health. State agencies derive most of their authority from federal laws that focus not on preventing pollution but on regulating it by limiting discharges into water and controlling emissions from smokestacks.

Because they are not set up to eliminate dangerous chemicals in products, state agencies have been forced to seek assistance from the state legislature to ban specific chemicals, such as PBDEs. The Departments of Ecology and Health, through Ecology’s program on persistent toxic chemicals, have sought restrictions on mercury and PBDEs. The program’s record so far: despite an eight-year history, it has won legislative approval to restrict only one chemical, mercury. This chemical-by-chemical approach is clearly not the road to timely solutions for toxic problems.

The Washington State Department of Agriculture does have clear authority to ban pesticides that harm health or the environment, and it has used this authority in the past to address particularly hazardous situations. What it lacks, however, is a framework to assess the potential hazards of pesticides and eliminate those that are likely to cause harm. The agency requires registration of pesticides used in the state but does not conduct its own assessment of toxicity unless there is already evidence of severe harm.

Taken as a whole, Washington’s agencies have no clear path forward for assessing what chemicals are too dangerous to appear in products. The Department of Ecology’s persistent toxic chemicals program and the Department of Agriculture’s pesticide registration program are a far cry from the regulatory framework needed to keep toxic chemicals out of products.

Washington state also lacks the technical resources and incentives needed to assist local companies in developing safer processes and products. While the Department of Ecology has a limited technical assistance team, its focus has been on reducing energy and water use rather than on toxic chemicals.

To effectively assist businesses in reducing pollution, the state needs a comprehensive program to help local companies develop safer products and reduce toxic chemical use. An effective program would require companies to develop and implement plans to reduce pollution; provide incentives, such as tax cuts, for companies that reduce their use of toxic chemicals; and institute disincentives for pollution, such as fees based on chemical use and releases. §

Next Month:

The Path Forward — Washington State Can Lead the Way.