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The Laws That Fail Us, and a Better Way

Pollution in People Report - Chapter 7 - section 1

WA state capitolThere 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, that 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 breastmilk and blood.

Don’t Ask, Don’t Tell

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% 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% 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.

An Uphill Battle for States

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.