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Descansos and Chemicals Policy - June 2008
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By Carolyn Raffensperger
So much of our history during the rapid evolution of the chemical industry feels like a timeline of descansos, those roadside crosses and wreaths that commemorate traffic deaths. The markers of loss and death from chemicals take the form of elegiac books, heroic struggles, catastrophes, and prosaic legislation. You know these markers -- Rachel Carson's Silent Spring, Lois Gibbs's work at Love Canal, Bhopal, the Exxon Valdez spill, and the policy responses to them: the establishment of the Environmental Protection Agency, the Toxic Substances Control Act, Superfund, and more.
The policies were based on certain assumptions about the science of toxic chemicals that have turned out to be false--for example, that the dose makes the poison or that we can always measure and manage risk. The work of Theo Colborn and others has demonstrated that many chemicals act as endocrine disruptors or neurotoxins and that timing of exposure can be more important than the size of the dose.
Policy makers have also assumed that the role of law is to protect the economy so that the economy could protect everything else. That is, the market should be able to handle environmental problems through accurate pricing mechanisms; a growth economy is essential for national wellbeing; and future generations will always be richer than preceding generations. These assumptions are now coming under fire as well.
The Toxic Substances Control Act of 1976 is the law that covers production and distribution of industrial chemicals. This law was passed to ensure that chemicals sold and used in the United States do not pose an unreasonable risk to human health and the environment.
Thirty years after the passage of TSCA we can declare it a failure. Before TSCA, industry was using about 62,000 chemicals. TSCA grandfathered in these chemicals, giving them a pass by not requiring testing for their environmental or human health affects. Those grandfathered, untested chemicals still constitute 92 percent of the chemicals produced today at more than a million pounds per year.
Manufacturers of new chemicals don't have to provide toxicological data before they are marketed unless EPA requires it. This means that the burden is on the public and our public agencies to show significant risk before chemicals can be regulated. But they can't demonstrate risk without data that they don't have. Thus we have added about 20,000 new chemicals to the roster in the last 30 years, many dramatically lacking in safety data.
SEHN and many of our nonprofit colleagues have been working to envision and enact policies that are based on different presumptions, such as:
- Exposures to chemicals are cumulative and their effects cannot be validly identified chemical by chemical.
- The responsibility for testing and disclosing data must be on industry rather than the public or its agencies. This means we must reverse the burden of proof.
- Preventing harm rather than managing risk is the only just way of dealing with problems.
- Searching for and choosing better alternatives through Green Chemistry is a key method for preventing harm.
The economy does not reflect the true costs of bad policy. The costs of damage have the perverse consequence of adding to the GNP rather than showing up as true costs. Moreover, the environmental damage falls disproportionately on poor people and communities that have already suffered too much.
Ten years ago SEHN convened the Wingspread conference on the precautionary principle as a way of addressing the shortcomings of environmental law and policy. We, along with many colleagues, are now taking the next steps to carry out the precautionary principle and guarantee a healthy planet for future generations. You will read about two efforts in this newsletter: the first, SEHN's comments on the Kid Safe Chemicals Act of 2008, outlines how we see the strengths and weaknesses of a current effort by Congress to update TSCA; and the second, an update on our True Cost Clearinghouse, gives economic ammunition to communities calling for precautionary action. In the decades to come, may we erect markers of chemical policy success rather than descansos of loss.
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Staff
To: The Honorable Frank Lautenberg, United States Senate; The Honorable Hilda Solis, United States House of Representatives; The Honorable Henry Waxman, United States House of Representatives
From: Carolyn Raffensperger, Executive Director; Ted Schettler, Science Director; Joseph H. Guth, Legal Director, Science & Environmental Health Network
Re: The Kid Safe Chemicals Act of 2008
June 2008
We are writing to convey several remarks regarding The Kid-Safe Chemicals Act of 2008 (KSCA). The Science & Environmental Health Network (SEHN) is a non-profit organization dedicated to implementing the precautionary principle as a basis for environmental and public health policy. SEHN has worked on chemicals policy at the national, state and local levels for many years.
KSCA represents a welcome, long overdue effort to improve the management of chemicals in commerce over that provided by the federal Toxics Substances Control Act (TSCA). Numerous reports by government, universities, and environmental health advocates over the years have demonstrated the manifold deficiencies of TSCA. They have highlighted TSCA’s outdated and inadequate approach for protecting communities, workers, consumers, children, and the environment from dangerous chemicals as well as its failure to promote industrial development of safer chemicals. Growing scientific evidence of human contamination with hazardous chemicals and mounting global toxic pollution underscores the urgency of reforming TSCA. We congratulate you and your staffs for developing a serious proposal for this much needed reform.
We respectfully offer several comments for your consideration. Our first comment relates to the importance of considering cumulative impacts in developing the overarching goals of a chemicals policy. Then we follow with more specific comments directed to the structure of KSCA as it is currently written.
A. KSCA Should Seek to Reduce Cumulative Impact of Chemicals
As the centerpiece of its approach for controlling hazardous chemicals in commerce, KSCA applies a specific "safety standard" separately to each individual chemical. As it is defined in the Act, this safety standard requires not that each chemical be absolutely safe, but only that it, taken alone, presents no more than a specified level of threat. Thus, subject only to this safety standard, an unlimited number of chemicals that are capable of causing cancer, reproductive harm, neurological harm, and virtually every other form of damage to human health and the environment will be permitted by KSCA to remain in commerce, to be present in products used by all members of our society (including children), and to be disseminated into the environment.
The limitation of this approach to managing chemicals is that it does not take account of the cumulative impact on human health and the environment of the tens of thousands of chemicals in global commerce. By "cumulative impact" we mean not just the effect of chemicals in commerce in combination with each other, but also in combination with the myriad chemicals that originate as pollutants (such as those that result from combustion of fuels, chemical degradation, and various industrial processes) and in combination with all the other causes of adverse effects on human health and the environment that are occurring throughout the world today.
This issue is of particular concern for mutagens, carcinogens, and reproductive/developmental toxicants (which affect multiple generations) and for persistent or bioaccumulative chemicals that remain in the environment (the latent dangers of which are committed to both ourselves and future generations, whether we recognize those dangers or not). Because cumulative impacts are not controlled by the Act, or even assessed, many chemicals that individually meet the safety standard will undoubtedly still contribute to adverse effects on human health and the environment. This problem will only grow as the world continues to become industrialized and as global volume of chemicals and chemical pollution continues to grow.
The chemicals industry should be accountable for all of the cumulative contributions of its products to adverse effects on human health and the environment, including both current and future generations. Just as the Toxic Substances Control Act of 1976 was not up to the task of regulating the rapidly growing chemicals industry of the late twentieth century, no chemicals law that fails to account for the problem of cumulative impacts will be up to the task of protecting human health and the environment in the twenty-first century.
Accordingly, we believe that a comprehensive chemicals law should prevent chemicals in commerce from cumulatively contributing to adverse effects on human health and the environment. It should include a set of incentives that will motivate a continual reduction in the hazardous properties of chemicals, and should not be structured solely around a safety standard for individual chemicals that will allow an unlimited number of harmful chemicals to continue in commerce. It should create tools for assessing the cumulative impact of chemicals and should incorporate legal structures designed to promote the development of alternatives that are less hazardous, persistent, or bioaccumulative even than those that are deemed to meet the law’s safety standard. The law should reflect a policy that a continual search for safer alternatives and their use must become the hallmark of the chemicals industry in the United States and throughout the world.
We recognize that KSCA intends to implement mandatory public chemical information requirements. One of the salutary functions of such public information is to provide information to the marketplace that will enable the market to respond to consumer demand for safer alternatives, and thus provide the chemicals industry with a market-based motivation to continually develop safer products. However, there is a need for additional government policy instruments designed to strongly discourage use of hazardous chemicals, especially including carcinogens, mutagens, reproductive/development toxicants and persistent or bioaccumulative chemicals. Some examples of such instruments are:
- Industrial manufacture and use of chemicals with problematic intrinsic properties could be subjected to publicly available alternatives analyses that provide society with available options to such manufacture and use.
- Taxes or fees on hazardous chemicals designed to discourage their use.
- Requirements for those marketing hazardous chemicals to invest in research on safer alternatives.
- Time-limited authorizations for hazardous chemicals designed to prompt periodic review of the need for them.
- It may be appropriate in some circumstances for government to regulate use of a hazardous chemical in favor of a safer alternative.
While this is an incomplete list of preliminary ideas, we believe it is essential that further effort be committed to developing such instruments and incorporating them into a law designed to promote continual reduction of the cumulative impact of chemicals in commerce.
B. Comments on the Structure of KSCA
KSCA contains numerous features that we strongly approve of and believe to be critical components of a modern chemicals policy. We urge that these features be maintained in the law and that they be strengthened in accord with our comments.
- The safety standard defined by KSCA focuses solely on whether a chemical poses harm to human health and the environment with respect to available data. It rejects TSCA’s inappropriate balancing of such harm against vested industrial economic interests (although exemptions are available in some circumstances). It thus establishes a baseline standard of risk to human health and the environment that each chemical in commerce must meet in order to remain on the market.
- KSCA places the burden of proof on the chemical industry to demonstrate that their products meet the safety standard. It rejects TSCA’s inappropriate and outdated approach of presuming chemicals are safe and then requiring EPA to prove otherwise. Chemicals that are found in umbilical cord blood are in particular presumed to fail the safety standard.
- KSCA applies to all chemicals in commerce, whether already on the market or yet
to be introduced. It rejects the inappropriate preference built into TSCA for older chemicals that were already on the market when TSCA was passed and that still constitute the large majority by weight of chemicals in commerce.
- KSCA requires the chemical industry to produce a minimum publicly available data set for all chemicals in commerce as a condition for placing or keeping them on the market.
While we strongly support this requirement, we are nevertheless concerned that as written KSCA may be susceptible to other interpretations and thus may not make this requirement ironclad. We believe that a mandatory statutorily defined "no data, no market" requirement is a prerequisite of effective chemicals management. The public availability of safety information would not just enable better government protection of human health and the environment but would also, as we have mentioned, enable the existing demand for safer chemicals to help drive the market toward producing safer products. Accordingly, the bill should unambiguously provide that a defined data set sufficient to enable a reasonable evaluation of the risks associated with every chemical in commerce by government, industry, and consumers must be made publicly available by a date(s) certain.
- The safety standard applies to all aggregate exposures to a chemical in commerce from all uses as well as legacy exposures from existing environmental contamination. This "aggregate exposure" is a far cry from the kind of cumulative impact of chemicals that we believe the law should seek to control, for it focuses only on the effect of each chemical individually. Nevertheless, we believe the safety standard should apply to aggregate exposures and should not be balkanized into evaluation of small increments of exposure from particular uses. What is important to society is that chemicals themselves be safe, not just that each individualized use would be safe if it were the only use.
Accordingly, the safety standard should evaluate aggregate exposure from all uses of each chemical and existing environmental contamination; industry should be required to ascertain and report all uses of each chemical; and any authorization under the Act must specify and apply only to the exposures and uses considered in evaluating the safety standard.
- The safety standard is intended to protect the "public welfare." We interpret this term as including protection of the environment and non-human species, and strongly support such protection. We believe that the meaning of this term should be made more explicit in the law to ensure its broad application. Environmental contamination by toxic chemicals is an important component of the ecological crisis we face today, which is diminishing the habitability of the Earth for all people. Chemical manufacturers should be accountable for damage their products contribute to the environment and general public welfare as well as for direct damage to human health.
Finally, implementation of the safety standard established by the Act, like implementation of any technical legal test, will always be subject to uncertainty and error. Inevitably, chemicals will erroneously be permitted on the market even though they would not in fact meet the safety standard if more were known about them. Society’s confidence that chemicals in commerce actually do meet the "reasonable certainty of no harm" safety standard could be materially enhanced by requiring that industry demonstrate that chemicals satisfy that test by clear and convincing evidence rather than by the less stringent legal standard of preponderance of the evidence. Also, robust provisions for ensuring transparent decision-making and public input will enhance society’s confidence in the safety of chemical products.
Reforming U.S. chemicals policy is a major undertaking that will take further thought and work. And yet, it is a doable task. Europe has taken significant steps to reform its management of chemicals already, and California is proceeding under its Green Chemistry Initiative. The time for chemicals policy reform has come.
Thank you for your hard work in developing the Kid Safe Chemicals Act of 2008 over the last several years. You have demonstrated courage and commitment to public health. We look forward to working with you on the details of this legislation to strengthen it and to ensure that it will in fact enable government to protect Americans and the environment from the cumulative impact of dangerous chemicals, establish a transparent chemicals market that will allow consumers and industrial users of chemicals to choose safer alternatives, and provide a system of incentives that will motivate the chemicals industry to actively and continually develop and use safer chemicals.
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Nancy Myers
Just over a year ago, the True Cost Clearinghouse debuted on the SEHN website. The TCC is a collection point for the growing number of studies documenting the hidden economic, health, and social costs of our current economic activities. It also highlights, underreported benefits of precautionary policies and remediation.
Have you visited the TCC recently? It has grown to nearly 170 titles -- from "ADHD costly for adults" to "Zero CO2 economy possible;" and from "Breastfeeding economic value" to "Carbon credits and cow dung" (currently consecutive on the alphabetical list). Some trends are emerging.
Macrostudies are in. A number of recent economic analyses have focused on the big problems of climate change and biodiversity value, as well as the effects of biofuels on food prices. Increasingly, environmental and environmental health problems are being reported as a huge drain on the global economy. These studies are drawing media attention and entering public consciousness. All the big studies have spawned news stories, many of which are included on the TCC.
The impact of these studies on policy remains to be seen, however. There is a great gap in the minds of many politicians between the macroeconomic consequences of global warming and decisions about, say, a local coal-burning power plant. It is up to us all to help them bridge that gap.
Specific smaller cost studies are challenging to do. At first the TCC was envisioned to help activists make economic arguments for specific precautionary policies, to counter industry's perpetual claims that protective measures cost too much. Many of these small-to-midsize studies are on the TCC--notably state-by-state child health studies that include economic costs ("Childhood illness, cost of preventable"), SEHN's own coalbed methane studies of a few years ago, and costs of pollution in specific localities ( e.g. "Pollution prevention cost-effective NY") and in reference to specific pollutants such as mercury and lead. But many smaller, place- or industry-specific studies have not yet been conducted.
An exciting recent development is that economists and graduate students are now available to help community groups with studies. Contact Economics for Equity and the Environment, one of the organizations linked to the TCC. Report your studies to the TCC.
Our private consumption habits matter. Policy change is complemented by individual lifestyle choices. What is striking in a number of recent studies is the evidence that simple lifestyle changes such as buying used clothing ("Clothing environmental impact") or dropping red meat from our diets ("Food--meat true costs," "Food miles and climate change"), especially the factory-farm varieties ("Agriculture--factory farm costs"), could save far more energy, water ("Water footprint"), and other resources than we imagine. Attaching those implications to policies such as agriculture subsidies is essential.
The TCC is searchable. It is also easy to scan. Look for the topics that interest you, like Energy--biofuels, Climate change, Biodiversity; or Food; click on a title for a brief summary, then link to the full article or study. Check out the links to detailed resource-economics sites and other organizations. Send us studies you think should be posted. Above all, make the arguments to policy makers!
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