“If you don’t understand why something is harmful, the best you can do is stay away from it,” Paul Anastas said to me a few years ago, explaining the basis of the United States’ risk-based chemicals management policies. “We currently deal with chemical security through guns, guards and gates rather than by redesigning materials,” continued Anastas, who directs Yale University’s Center for Green Chemistry and Green Engineering and served as Assistant Administrator for the US Environmental Protection Agency’s (EPA) Office of Research and Development from 2009 to 2012. “Protection measures against hazards can and will fail,” said Anastas. “And when they fail, risk goes to the maximum.”
These words from Anastas, who with John Warner is widely considered to be a founder of the field of green chemistry, came to mind on Sunday night, August 4, as news broke of a train derailment in Lawtell, Louisiana. Several of the train’s cars overturned and spilled a mix of chemicals that are reported by the Louisiana Department of Environmental Quality to include sodium hydroxide, hydrogen sulfide, lube oil and various volatile organic compounds. Anastas’ words also came to mind after the catastrophic explosion at the West, Texas fertilizer plant in April that killed 15 people and injured hundreds; the June 13 explosion at the Williams, Olefins plant in Geismar, LA that killed two people and injured more than 70; the June 14 pipeline rupture at a CF Industries nitrogen plant in Donaldson, Louisiana that killed one person and injured seven; and the May 28 derailment outside Baltimore of a freight train carrying chemicals that triggered a fire that burned uncontrolled for ten hours.
Such a list could go on and on. According to the Right-to-Know Network, in 2012 alone there were more than 30,000 incidents across the US involving hazardous substances that resulted in an estimated 1,270 deaths, 1,899 injuries, 1,360 hospitalizations and the evacuation of nearly 28,000 people. Not including gas, oil and other fuels, about 300 different chemical substances were involved in these incidents that occurred in all fifty states.
Anastas’ words also came to mind when reading President Obama’s August 1, 2013 Executive Order Improving Chemical Facility Safety and Security and while listening to the debate over the Chemical Safety Improvement Act (CSIA) (S. 1009), legislation that would reform the Toxic Substances Control Act (TSCA). While both the Executive Order and the CSIA as introduced (the bill is expected to be amended before progressing further) mention safer alternatives – the CSIA uses the word “safer” just twice in its 127 pages – their emphasis is on reducing exposure to existing hazardous substances and, in the case of the Executive Order, on responding to emergencies involving these chemicals. Given the reality of current chemical use this is not surprising. But it raises questions about how continuing to rely largely on end-of-pipe risk-reduction approaches will significantly advance protecting human health and the environment from harmful chemical exposures.
Preventing pollution by reducing and eliminating hazards at the source has long been a strategy advocated not only by green chemists but also by many others in natural resource management and public health, including the National Pollution Prevention Roundtable and businesses working to produce chemically safer products. Supporting such hazard-reduction efforts are organizations that include the American Sustainable Business Council, Green Chemistry in Commerce Council (GC3), BizNGO, Clean Production Action and programs that include those of the Massachusetts Toxic Use Reduction Institute, Michigan Green Chemistry Roundtable, Healthcare Without Harm and the Interstate Chemicals Clearinghouse. Preventing illness and injury by eliminating a hazard and substituting something safer is also the fundamental principal of occupational health and safety’s hierarchy of controls.
CSIA’s problematic provisions
Among the concerns that have been raised about the CSIA by environmental health advocates, ten state Attorneys General, legislators from 25 states, numerous legal scholars and others – and in a California state Assembly resolution – is how the bill would affect existing state chemicals management policies. During the July 31 Senate Environment and Public Works Committee hearing on the bill, CSIA sponsor Senator David Vitter (R-LA) said that the CSIA preemption provisions are not intended to negate state law but thus far they have largely been interpreted as a significant expansion of Environmental Protection Agency (EPA) policy’s ability to trump state regulations. If so, these provisions could negatively affect state occupational health – and other – protections.
Among state laws that could be affected by the CSIA as introduced are California’s Proposition 65 and the state’s green chemistry initiative, the Massachusetts Toxic Use Reduction Act, and the chemical use reporting and prioritization programs established in Maine and Washington – as well as the many chemical-specific regulations in place all across the country. All are programs that ultimately influence which chemicals are used in consumer products and in manufacturing processes.
To address ongoing concerns of existing chemical policies that have typically focused on regulating use of one chemical at a time without regard to what might replace a particular hazardous substance, language specifying the use of safer substitutions has been included in numerous state bills over the past several years. Promoting safer chemical substitutions is also a focus of California’s Safer Consumer Products Regulations that are now in the process of being finalized.
Formaldehyde provides a notable example of how state laws and policies can drive the reduction in use of a hazardous chemical. The EPA considers formaldehyde a probable human carcinogen, and formaldehyde is known to be a potential respiratory hazard, skin irritant and sensitizer. State policy, however, has been instrumental in reducing potential exposures. In California, where formaldehyde is regulated as a carcinogen subject to Proposition 65 rules and was designated a toxic air contaminant with no safe exposure level, regulations have been in place since 2009 to control formaldehyde emissions from composite wood products. A federal law was passed in 2010 to extend these standards nationally, but the EPA rulemaking process to implement such standards just got underway in 2013.
In Massachusetts, where formaldehyde is a Toxics Use Reduction Act “reportable” chemical, emissions declined 91% between 1990 and 2010. There may be many reasons contributing to this decline but it contrasts sharply with national release data that show formaldehyde releases declining only about 14% nationwide during the same time period.
The Consumer Product Safety Commission requires warning labels on products that contain more than 1% formaldehyde. OSHA and NIOSH have exposure limits in place, but neither formaldehyde nor formaldehyde-releasing compounds are specifically restricted from use in personal care products or in products that can come in contact with skin. But Maine and Washington have designated formaldehyde a high-priority chemical of concern, and Washington includes it among the chemicals whose use children’s product manufacturers must report on. And in May 2013, Minnesota became the first state to bar formaldehyde and formaldehyde-releasing compounds from children’s personal care products. How TSCA reform might affect any of these polices or programs is of pressing concern.
As John Warner and others are quick to say, the intent of policies designed to promote use of safer chemicals is not to legislate innovation or to prescribe what can be produced, but to promote the production of chemicals without adverse environmental and health impacts – to promote chemical safety in a way that cannot be done with “guns, guards and gates” alone.