States lead the way on chemical regs

Janine Walsh, owner of Walker’s Gymnastics and Dance of Lowell, Massachusetts, was unaware that foam cubes in her gymnastics pits contained harmful chemicals. So in 2018, Walsh was both surprised and grateful when a staff member at the state-sponsored Toxics Use Reduction Institute (TURI) at the University of Massachusetts Lowell, a 10-minute drive away, asked if she would consider replacing them.

The cubes, used to cushion gymnasts’ falls, often contain flame retardants that can cause thyroid problems, fertility issues and cancers, but many aren’t aware of the threat. Walsh applied for a small-business grant through the institute to help her buy new ones. She was mindful of the hundreds of children, ages 1 to 18, who’ve been coming to the gym and dance studio every week for 44 years.

“I couldn’t help but think about how many decades we’ve been in operation and had foam in our pits that had been chemically treated, just accepting and assuming that it’s OK since it’s part of gymnastic equipment and requirements,” Walsh said.

Dissatisfied with the federal government’s lack of progress, states, including Massachusetts, have taken the regulation of toxic chemicals into their own hands. Since 2003, 38 states have passed laws that ban substances such as lead and bisphenol-A, a chemical used in certain resins and plastics, according to a database maintained by Safer States, an alliance of advocacy groups focused on toxic chemicals. This year, the group estimates, at least 32 states are considering legislation to further tighten chemical regulations.

Massachusetts started the trend in 1989, when it enacted a law requiring companies that use large quantities of chemicals to report how they use the substances and to develop chemical-reduction plans every two years. Supported by industry fees, the program awards grants to companies to help them invest in safer alternatives. Other states have followed suit, but none has made as much progress as Massachusetts.

From 2007 to 2019, nearly 450 facilities cut their use of chemicals by a collective 234 million pounds, according to TURI data. They also reduced waste by 30 million pounds and chemical releases by 4.5 million pounds.

Federal stagnation

In early April, after knowing about the lethal effects of asbestos for a half-century, the U.S. Environmental Protection Agency finally proposed a ban on the mineral, which can cause lung cancer and mesothelioma, a rare, virulent cancer of the lining of the lung and abdomen.

Asbestos is still found in many building materials manufactured in the mid-20th century. The sole importer in the United States is the chlor-alkali industry, which uses asbestos-containing diaphragms during the production of chlorine. The U.S. Chamber of Commerce, speaking for that industry, issued a statement last month, saying, “The EPA’s proposed phase out of all uses of asbestos will have unintended consequences on safe drinking water and our already-precarious supply chain of consumer products.”

While the agency’s long-awaited move on asbestos represents a step forward, thousands of chemicals remain untested.

Attempts to manage an ever-growing list of chemicals began in 1976, when Congress passed the Toxic Substances Control Act, or TSCA. During the first 40 years of TSCA, the EPA restricted the use of only five existing and four new chemicals. When the agency failed to ban asbestos in 1991, the law’s weaknesses were laid bare.

“The EPA appeared to have given up after that, as if they felt like, ‘If we can’t even ban asbestos, this chemical that is clearly associated with cancer, then what’s the point?’” said Eve Gartner, managing attorney at Earthjustice, a nonprofit environmental law organization.

Amendments to TSCA, signed into law by President Barack Obama in 2016, made it easier for the EPA to evaluate toxic chemicals. The amended law requires safety reviews for existing chemicals and evaluations for new ones before they hit the market. Of the tens of thousands of chemicals that were exempted when TSCA took effect, the EPA must prioritize which ones urgently need evaluation and report its findings.

Many states aren’t waiting for the EPA to act. In the early 2000s, some, such as California and Maine, began proposing bans and restrictions on substances including mercury and a group of plasticizers known as phthalates. Gartner said environmental advocates hoped the jumble of state rules would persuade the chemical industry to endorse, or at least tolerate, stricter federal regulation in the name of consistency.

It hasn’t worked. As of February, the EPA’s TSCA inventory included 86,631 chemicals, 42,039 of which were considered active. Not all these chemicals are dangerous, necessarily, but most have yet to be tested for potential health risks. The agency took four years to assess the health risks of asbestos and nine other chemicals, most of which were already known to pose serious hazards. It’s working on the next 20.

During the Trump administration, the EPA “ignored the science and the facts” and did lackluster assessments of the first 10 chemicals, failing to acknowledge, among other things, exposures through air and drinking water, Gartner said. “It still found all 10 presented unreasonable risks.”

Under the Biden administration, the EPA is trying to address these deficiencies, she said, but “they’re doing it in a way that’s deeply flawed” — not taking cumulative exposures into account, for example. And industry is “already attacking the science” that underlies the EPA’s risk assessments.

Gartner said “it’s realistic to think that if we don’t have another setback,” the EPA will “continue to gain efficiency.” If the agency follows its timeline, she said, it would be on track to regulate 30 to 40 chemicals in 10 years.

In an email, an EPA spokesperson told the Investigative Reporting Workshop that the TSCA program “has been and remains seriously underfunded, delaying many of the timelines for our work.” This fiscal year, the spokesperson said, the agency received its “first-ever meaningful increase in TSCA funds” — $15 million.

States trapped by federal approach

The EPA is trying to extract itself from a deep hole, created by its plodding, chemical-by-chemical regulatory approach. Some states, in contrast, have begun targeting entire classes of chemicals. Twenty-nine are considering restrictions on per- and polyfluoroalkyl substances, known as PFAS, which accumulate in the body without breaking down. PFAS are found in nonstick cookware, waterproof clothing, food packaging and flame retardants.

The federal government assumes a chemical is safe until proved otherwise — a tall order. “It’s figuring out how much poison is OK or how much exposure is OK,” said Sarah Doll, national director of Safer States.

States such as Massachusetts and Maine have established drinking-water standards for six PFAS, although there are thousands. But states can do only so much without the backing of the federal government to regulate groups of chemicals, including PFAS, Doll said.

The American Chemistry Council, a trade group that spent almost $17 million lobbying in 2021 — more than it had spent in any of the previous 20 years — said it stands behind the current approach.

“We continue to support effective, risk-based, science-based implementation of TSCA according to Congressional intent and the intent of the bipartisan amendments to the law,” the group said in an email to IRW.

The ACC recently complained about a new EPA draft risk assessment of formaldehyde, which linked the chemical, used in building materials and household products, to at least three cancers.

Although formaldehyde is already considered a known human carcinogen by the International Agency for Research on Cancer and the U.S. National Toxicology Program, the ACC said in a press release it was “troubled” that the EPA document could be used “to guide regulations or to set policy at any level of government.”

State action

In the early 1980s, people in Woburn, Massachusetts, grew increasingly worried that W.R. Grace and Co., a metal-finishing plant, had contaminated the city’s drinking water with the solvent trichloroethylene. By 1986, 21 children in the city of 36,500 had been stricken with leukemia. The episode inspired the best-selling book “A Civil Action.”

The Woburn incident fueled public concern about other hazardous waste sites, said Liz Harriman, deputy director of TURI. This led, ultimately, to the passage of the Toxics Use Reduction Act in 1989.

It was a revolutionary idea at the time, Harriman said. “People were busy with pollution prevention, but they really weren’t doing a lot about focusing on why we are using these chemicals to begin with and why we are producing this waste to begin with,” she said.

Companies throughout the United States are required under the EPA’s Toxics Release Inventory program to report the types of chemicals they use and the amounts they release into the environment. The program was launched after a release of a pesticide ingredient, methyl isocyanate, from a Union Carbide plant in Bhopal, India, killed thousands in December 1984. Eight months later, a leak of another pesticide ingredient, aldicarb oxime, from a Carbide plant in Institute, West Virginia, sent 135 people to the hospital.

The Massachusetts law goes a step further than the federal program, requiring chemical-intensive industries such as aerospace and medical-device manufacturers to hire toxics use reduction planners. Every two years a planner suggests ways a company could limit its use and release of chemicals.

The state law doesn’t ban chemicals; instead, it lets companies decide whether to follow reduction plans. Hundreds have, according to TURI. The institute’s records show, for example, that River Street Metal Finishing Inc. cut its use of sulfuric acid by up to 450 gallons per year, and US Pack Inc. cut its use of acetone, ethylene glycol and methanol by about 19,000 pounds per year.

Planners “really examine the whole process” to try to make sure they aren’t wasting or emitting more than they have to, Harriman said. “They also ask if there is a reason why they have to use it.”

TURA’s uniqueness

TURA is the only program of its kind in the United States. Other states, lacking political will or public support, have been unable to replicate it.

The Toxics Reduction Act, passed in Ontario, Canada, in 2009, came the closest. But industry resistance and limited funding caused it to be repealed roughly a decade later.

Harriman said TURA is a holistic program that requires companies to report chemical use while also paying fees that fund TURI, the state’s Office of Technical Assistance and the Massachusetts Department of Environmental Protection. Fees are based on the number of chemicals used by a company and the size of its operations.

“Other pollution-prevention programs went away over the last 20 years because there just wasn’t funding,” Harriman said. The TURA program didn’t because it’s still supported by those fees. In addition, companies realized they could save money and protect their workers by cutting back on harmful substances.

Last November, TURI appointed Baskut Tuncak, a lawyer from Seattle, as its director. Tuncak served as the United Nations’ special rapporteur on human rights and hazardous wastes from 2014 to 2020.

During his tenure abroad, he investigated more than 200 toxic-exposure cases. In 2017, for instance, he visited Freetown, Sierra Leone, and described what he saw in a trip report:

I witnessed communities in and around Freetown’s largest waste dump — including children and pregnant women — breathing the dark haze of air pollution, drinking, bathing, and cleaning in toxic water, and eating meat contaminated by waste. … Individuals lack access to information regarding contamination levels of air, water and food, as well as adverse impacts on human health, such as cancers, respiratory diseases, birth defects, and reduced cognition, among others.

“It felt like with every mission and every trip there was something else that was shocking,” Tuncak told IRW.

Tuncak said his work abroad motivated him to find solutions to the chemical crisis. He believes the Massachusetts model can be applied elsewhere.

“I think other states can look to the experiences of TURI,” he said. “Those experiences can also be shared and help drive countries around the world away from the use of some very nasty, toxic chemicals that companies in Massachusetts have been able to get away from.”