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Week of 3.21.08

Swimming in Chemicals
An Excerpt from 'Exposed: The Toxic Chemistry of Everyday Products'

Exposed: The Toxic Chemistry of Everyday Products and What's at Stake for American Power The following is an excerpt from investigative reporter Mark Schapiro's book, Exposed: The Toxic Chemistry of Everyday Products and What's at Stake for American Power. Schapiro's book reveals how the European Union is demanding that multinationals manufacture safer products, while products developed and sold in the United States are increasingly equated with serious health hazards, and are banned from Europe and other parts of the world.

Fall & Rise of the Environmental Mohicans

Since the end of World War II, molecules thrown together in heretofore unheard of combinations have given rise to new products inconceivable a couple of generations ago. Those nonstick perfluorinated substances, for example, have added new levels of convenience, and those polybrominated flame retardants have added new safety. But like the luster of technology that was slowly fading inside those four walls of the Atomium, what was being found in our circulatory systems also offered a glimpse into the legacy left behind by the inventiveness of the chemical age. The chemical imprints in our blood have prompted a reassessment, in Europe, of chemistry's magic.

For a quarter-century, the Bruno family and other Europeans have relied on principles of regulation based substantially on those of the United States for their protection from chemical hazards. The Toxic Substances Control Act, or TSCA, was passed by Congress in 1976 six years after President Richard Nixon created the EPA. TSCA was the first effort by any government to attempt to assert some level of oversight over the vast amount of chemicals that had been introduced into the marketplace since the end of World War II. The new law took effect in 1977. In those days environmental policy in Europe was largely in the hands of individual governments. TSCA had the effect of prompting the continent's major chemical powers—West Germany, France, and the UK—to harmonize their varying regulations to conform more closely to those of TSCA. The rest of the European Community's then nine other members quickly followed.

TSCA's primary innovation at the time was in requiring that all chemicals developed from that point on be subject to review for their toxicity before reaching the market. That sounds good, except for one major caveat: TSCA exempted all chemicals already on the market from review. The EPA made up a list of all chemicals already for sale as of December 1979 and called it the TSCA Inventory. Some sixty-two thousand chemicals were grandfathered into the market, with no testing or review. These included thousands of potentially highly toxic substances, including the likes of ethyl benzene, a widely used industrial solvent suspected of being a potent neurotoxin; whole families of synthetic plastics that are potential carcinogens and endocrine disrupters; and thousands of other substances for which there was little or no information.

Twenty-eight years later, according to the EPA itself, 95 percent of all chemicals have never undergone even minimal testing for their toxicity or environmental impact. Researchers at University of California-Berkeley's School of Public Health estimate that forty-two billion pounds of chemicals enter American commerce daily—enough chemicals to fill up 623,000 tanker trucks everyday, a string of trucks that could straddle the United States twice if placed end to end. Fewer than five hundred of those substances, according to a report the school produced for the state of California, have undergone any substantive risk assessments.

Even for those few new chemicals that industry does bring to market, the record is not reassuring. The EPA requires that a premarket notification (PMN) be supplied for the agency's review ninety days before commercial-scale manufacturing of new chemicals begins. Manufacturers are supposed to include production volume, intended uses, and available exposure and toxicity data. Theoretically, this permits the Office of Pollution Prevention and Toxics (OPPT) to determine whether regulatory action is warranted before the chemicals hit the market. But according to their own figures, 85 percent of the notifications submitted annually contain no health data.

There has been abundant criticism of inadequacies in TSCA for more than two decades. A legion of NGOs, scientists, and even government agencies has been devoted to advocating TSCA's reform. The Government Accountability Office concluded in 2005 that the agency has inadequate test data to make safety assessments and has permitted the chemical industry too much leeway in keeping information from public view by indiscriminate assertion of proprietary information. The requirements that EPA include the "costs to industry" in determining whether a substance presents an "unreasonable threat to public health" and that it impose the "least burdensome regulation" (to industry) was a bar that the GAO found too high for effective protection from chemicals' potential harm. One result of these rules was that the EPA has banned just five chemicals since the agency's creation a quarter century ago. That includes the family of polychlorinated biphenyls (PCBs), millions of tons of which were used as coolants and lubricants in transformers and electrical equipment until they were found to cause acute skin lesions, were a likely contributor to liver damage, and were carcinogenic. PCBs are also highly persistent: though the EPA banned them in 1977, residues are still turning up in drinking water and in the soil.

The other chemicals banned by EPA were halogenated chlorofluoroalkanes, because of their contributions to acid rain after the United States signed the Montreal Protocol; dioxins, a byproduct of chemical manufacturing released into the air and linked to skin lesions in those exposed as well as cancer and liver damage; and hexavalent chromium, an additive to paints and coatings that was strongly linked to lung cancer among exposed workers (and that is on the EU's list of banned substances in electronics). There was, briefly, a sixth substance on the EPA's banned list: asbestos. In 1989, the EPA declared a ban on what amounted to more than 90 percent of all uses of asbestos, which it classified as a "known carcinogen." But industry challenged the agency and in 1991 a federal court vacated the ban, asserting that the EPA had not met TSCA's requirements for proof of harm balanced against the benefits of asbestos, and had not demonstrated that the ban was the "least burdensome alternative" for eliminating the "unreasonable risk" of exposure to the carcinogenic substance. More than thirty million pounds of asbestos is still sold in the United States each year, used as insulation in an array of products including brake shoes and industrial tiles. The agency has not acted to ban a chemical since that decision.

One of TSCA's most significant weaknesses, according to Joseph Guth, a biochemist and lawyer who works as legal director of the Science and Environmental Health Network, is that by making it easier to hang onto old chemicals rather than develop new ones, it provides no incentive for developing less toxic alternatives. "TSCA rewards ignorance," Guth said. "The chemical companies give you function and they give you price. What they don't give you is safety or environmental effects. That is a complete black box. The data gaps are massive. So, let's say you want to develop a more effective and safer chemical. There is no information out there to prove that yours is better or safer for human health or the environment. There's no competitive pressure to improve it. . . . The current system impedes the ability of innovations to penetrate the market."8 Consumers, in other words, have no means of expressing their potential preference for less toxic alternatives.

The Nobel Prize-winning economist Joseph Stieglitz called this inequality of knowledge between consumers and producers "information asymmetry," and pegged it as one of the central flaws of market capitalism.9 The absence of even minimal toxicity data works to insulate the industry from the normal supply-demand dynamic of the market. In a country that prides itself on its entrepreneurial ingenuity, the United States is hitching its faith to a system that reinforces stasis and a potentially dangerous status quo.

The bio-monitoring results in America and in Europe are the clinching evidence of TSCA's ineffectiveness. "All our exposure assumptions have been proven wrong," Malcolm Woolf, staff counsel to the Senate Environment and Public Works Committee, told me. "Because we did not act under TSCA, the assumption is that chemicals have been certified safe. But it's exactly the opposite: They haven't been certified anything."10 TSCA is now derisively referred to among its many critics as the "Toxic Substances Conversation Act." The chemical industry has wielded considerable power in Washington to keep it that way. Over the past decade, the industry has been either the second or third biggest lobbying force on Capitol Hill, according to the Center for Responsive Politics. Between 1996 and 2006, the industry made $35 million in contributions to federal election campaigns, and spends between $2 million and $5 million each year on lobbying in Washington (not including the significant amount of lobbying by the industry in state capitals).

Lynn Goldman, a pediatrician and epidemiologist, served as assistant administrator for the EPA's Office of Prevention, Pesticides and Toxic Substances from 1993 to 1998, when she left to become a professor of environmental health sciences at the Bloomberg School of Public Health at Johns Hopkins University. By the mid-1990s, she told me, the flaws in TSCA had become abundantly clear. "Suddenly all of us were realizing, 'there were thousands of chemicals out there, and we didn't know what they were. We weren't able to get the data, weren't able to assess the risks, nothing." Goldman recalls a party held in Washington in 1996 to celebrate TSCA's twenty-year anniversary. "I'll never forget. Someone from the chemical industry got up to salute TSCA, and said, 'This is the perfect statute. I wish every law could be like TSCA.'" She laughed, "It was then I knew for sure there was something wrong."

The act's long reign, however, is about to end. The United States hardly needed a foreign hand to set its downfall into motion, but that's what happened. TSCA's demise, and with it American preeminence in environmental protection, was set into motion by a series of alarming news reports in Europe.