EDF Files Lawsuits to Defend Reforms to Chemical Safety Law

(New York, NY – August 14, 2017) On Friday, Environmental Defense Fund (EDF) filed two lawsuits to defend the nation’s recently updated federal chemical safety law and ensure it protects public health. The lawsuits challenge two Environmental Protection Agency (EPA) framework rules, published July 20, under the Toxic Substances Control Act (TSCA). The rules govern how EPA will prioritize and conduct evaluations of chemicals in commerce, and hence will affect hundreds of future decisions made by the TSCA program.

“Just last year, Congress voted overwhelmingly to overhaul America’s chemical safety law to better protect the public from toxic chemicals,” said Dr. Richard Denison, lead senior scientist at EDF. “Unfortunately, in straying from the letter and intent of that law, the EPA’s framework rules leave the public at risk from chemicals commonly found in our homes, schools and workplaces. Our legal challenges seek to hold EPA to the law and ensure that the public is protected as Congress intended.”

The legislation Congress passed last year, called the Lautenberg Act, updated TSCA with the intent of ensuring the safety of chemicals that are used in everything from wall paint to stain-resistant coatings on couches.

Until the update, the original law had been a notorious failure—with EPA unable to ban even known carcinogens like asbestos. Science has demonstrated that widely used chemicals pose a significant health risk, especially to children, pregnant women and other vulnerable populations. The reform fixed the flaws in the old law and gave EPA the tools and authority it needs to protect the public from toxic chemicals.

The Lautenberg Act required that EPA issue several framework rules within a year of the law’s enactment. Two of these rules set out the processes EPA is to follow in reviewing the safety of chemicals in commerce, and will have direct impact on how well the law works going forward, in both the current and future administrations.

The rules were proposed in January, before the administration changed hands, and the final rules were published on July 20, 2017. Notably, the changes from January’s proposed rules were directed at EPA by Dr. Nancy Beck, freshly arrived from the chemical industry’s main trade association, where she had authored industry comments on the proposed rules. She now serves as the top political official in EPA’s TSCA office.

Among other arguments, the lawsuits challenge a major flaw in EPA’s statutory interpretation that has the potential to undermine many future decisions made by the TSCA program. In EPA’s proposed rules in January, EPA adopted the position that it had to analyze, to some extent, all of the conditions of use for a given chemical substance. Yet, in the preambles to the final rules, the Trump EPA reversed position and stated that, as a matter of law, it may “exclude certain activities that EPA has determined to be conditions of use” from its analysis at the outset.

Under the rules, EPA asserts that it has authority to ignore numerous potential and actual exposures to risky chemicals.  For example, under its new interpretation, EPA can ignore many ongoing exposures to a group of toxic chemicals that were added to furniture foam cushions as “flame retardant” chemicals for decades, polybrominated diphenyl ethers (PBDEs). PBDEs can likely be found in almost every home in America, are highly persistent and are linked to a number of health concerns, including interfering with hormone function, learning and behavior issues in children, and thyroid cancer.

The court challenges today were filed in the U.S. Court of Appeals for the Second Circuit in New York. As this litigation proceeds, you can find more information – including all significant legal documents – on EDF’s website.