In 2016, Congress came together to amend the 50-year-old chemical safety laws. The passage of the Frank R. Lautenberg Act, as the bill became known, was a rare triumph in polarized times. Lawmakers put aside their differences and corrected some of the most dangerous flaws in the old Toxic Substances Control Act (TSCA).
With the Lautenberg Act signed into law, the Environmental Protection Agency (EPA) was given new authority to regulate toxic chemicals. The agency was tasked to review of all the chemicals on the market and screen new chemicals for long-term risks.
Instead of waiting for disaster, the EPA could better act as a critical first line of defense for the public health.
That was the plan, but times change.
Under the current administration, the agency appears determined not to follow the path set out by Congress. In fact, environmental advocates and labor groups have found that the EPA’s approach to implementing Lautenberg is dangerous, illegal, and short-sighted.
Republican and Democratic legislators joined forces to give the EPA the power to prevent another tragedy like asbestos. So why does it seem like the agency is turning a blind eye and inviting disaster?
The Lautenberg Act Was Supposed to Help Workers, Not Quarterly Earnings
Every year, workers are injured or killed because they are exposed to dangerous chemicals on the job. Thousands more suffer and die years later from diseases associated with the chemicals they handled in their younger years. It doesn’t have to be this way.
By amending TSCA in 2016, Congress required the EPA to review the risks of all new chemicals and significant new uses of those chemicals, before they are allowed on the U.S. Market. When he signed Lautenberg into law, President Barack Obama explained why the changes were needed:
“In 1976, some 62,000 chemicals were already on the market. But the law placed demands on the EPA that were so tough, so onerous that it became virtually impossible to actually see if those chemicals were harming anybody.”
These chemicals were “grandfathered” into the market without any sort of assessment of downstream environmental impacts, risks posed to workers, or threats to vulnerable populations, such as children and pregnant women.
Obama lamented how little progress had been made because of this old loophole:
“In fact, out of those original 62,000 chemicals, only five have been banned. Five. And only a tiny percentage have even been reviewed for health and safety.
The system was so complex, it was so burdensome that our country hasn’t even been able to uphold a ban on asbestos – a known carcinogen that kills as many as 10,000 Americans every year. I think a lot of Americans would be shocked by all that.”
The law needed to be changed, and on that day, Obama spoke to a group that included representatives from industry, consumer interest groups, and lawmakers from both sides of the aisle. “You don’t get all these people in the same room without a few late nights on Capitol Hill,” he joked, grateful for the compromise that would protect future generations. He said:
“This is a good law. It is an important law. Here in America, folks should have the confidence to know that the laundry detergent we buy isn’t going to make us sick, the mattresses our babies sleep on aren’t going to harm them.”
The message from Congress and the President was clear: Make sure chemicals are safe before they go on the market.
Environmental and Workers Groups Urge EPA to Change Behavior
Since taking control of the agency in January 2017, the Trump EPA has actively avoided using the regulatory tools mandated under the amended TSCA, according to groups that advocate for workers and the environment.
In February, the Environmental Defense Fund (EDF) filed comments on the EPA’s “Working Approach to Making New Chemical Determinations under TSCA,” a long-awaited document that provides the clearest explanation yet of how the agency plans to implement the new chemicals program under Lautenberg. Overall, they wrote:
“EPA’s changes to the new chemicals program threaten to cut the public out entirely and turn the program into essentially a service operation for the chemical industry.”
Under the old TSCA, the EPA wasn’t required to test new chemicals, and as Obama pointed out, this meant chemicals never got tested. Lautenberg was supposed to change that. The EDF’s comments detail how the Trump EPA has implemented a convoluted and illegal rulemaking process to avoid doing the critical testing Congress demanded.
“EPA appears to be working to avoid at all costs issuing orders or rules regulating new chemicals,” said the EDF. The end result is that currently, “companies get to decide whether, and if so, how, their new chemicals will be regulated.”
This is the opposite of the change lawmakers sought when they passed Lautenberg. By not requiring all relevant information about chemical safety from manufacturers, the EPA is failing as a first line of defense for the public health and for workers everywhere.
The American Federation of Labor and Congress of Industrial Organizations, which represents millions of working people, condemned the EPA’s new rulemaking as showing a “lack of political will to hold chemical companies responsible for exposing workers to toxic substances.” They wrote:
“EPA mistakes the implementation of the amended TSCA as striking a balance between the chemical industry and advocates for susceptible subpopulations, such as unions, but the agency’s only requirement is to follow the law the way Congress intended it to be—more protective, not less.”
The AFL-CIO expressed deep concern about the direction the EPA was headed. Rather than screen toxic chemicals, the EPA “camouflaged the risk to workers” by including requirements and safety measures that are known to be ineffective.
A Less Toxic Future Is Good For Everyone
In 2016, Congress asked in plain language for the EPA to do a better job ensuring toxic chemicals stay off the market. By failing to heed this call, the EPA is putting another generation of workers at risk of unnecessary personal injury.
“It is not inevitable that workers develop diseases because of the chemicals they are required to work with,” wrote the AFL-CIO. “Where proper controls are required or safer alternatives are used, these diseases are preventable.” The EPA needs to embrace this simple truth instead of succumbing to corporate pressure.
In short, the agency needs to follow the law.
“We can keep families safe and unleash the engine of American innovation,” Obama said in the Rose Garden at the Lautenberg signing. “We can protect the planet and keep creating jobs.” Good governance doesn’t have to be a zero-sum game. When public health comes first, businesses can thrive, too.
“If we can get this bill done,” Obama concluded, “it means that somewhere out there on the horizon, we can make our politics less toxic as well.”
The transcript from the signing records “laughter” after the president’s closing remarks. At the time, it was probably hopeful.