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A River of Doubt

Wednesday, March 19, 2014

When 300,000 West Virginians went without water for three weeks earlier this year, most Americans were shocked to learn that health officials and the government didn’t know much about the licorice-smelling chemical that had leaked from a storage facility into the Elk River near Charleston. Hundreds of residents contacted the state’s Poison Control Center to report nausea, vomiting and rashes. Weeks after officials lifted the water ban, complaints of the licorice odor continue and the long-term health effects of the coal-processing substance – 4-methylcyclohexanemethanol (Crude MCHM) – are still unknown.

Here’s why: When Congress passed the Toxic Substances Control Act in 1976, the new law assumed that Crude MCHM and the nearly 62,000 other chemicals then on the market were safe. Following the spill, the company that makes Crude MCHM, Eastman Chemical, released a handful of safety studies, but it wasn’t required to assess the chemical’s safety or share its research with regulators.

One would think that the crisis in West Virginia would spark bold action in Congress to truly protect communities from toxic chemicals in our environment.

Think again. 

On Feb. 27, Rep. John Shimkus (R-Ill.) circulated a “discussion draft” of a TSCA reform bill entitled the “Chemicals in Commerce” Act. Unfortunately, this proposed legislation would do little to protect people like the West Virginians exposed to Crude MCHM. In fact, its language is so tilted to toward industry it might as well be called the “More Toxic Chemicals in Commerce Act.”

In its scheme to identify what substances are safe, the Shimkus draft simply divides the chemical world into two categories – high and low priority. It does not contain a requirement that companies provide even a minimum set of safety information to the Environmental Protection Agency about the substances they manufacture. And once EPA has designated a chemical as low priority, the manufacturer can pretty much relax, because EPA would not require the company to assess its safety. Unless the agency received troubling new information, EPA would automatically consider it safe.

According to our analysis of the bill, the licorice-smelling Crude MCHM would most likely be considered “low priority.” Here’s why. First, other federal agencies don’t consider MCHM dangerous because the little research that exists suggests that small quantities won’t hurt you immediately. Second, when deciding whether a chemical is low or high priority, the EPA would consider whether the uses and exposure levels pose unreasonable risk of harm to health and the environment under “intended conditions of use.” MCHM might not raise red flags because large exposures to the coal-processing chemical aren’t supposed to happen. Workers and citizens do not normally – if plants operate correctly and no accidents occur – come into contact with great quantities of the stuff. While the focus on risk and exposure makes sense, the “unreasonable risk” standard fails to place people’s health at the forefront of the safety assessment. 

With no requirement for a minimum set of safety information for all chemicals in commerce, the bill would leave the public still in the dark about many potentially toxic substances, including the chemical in the West Virginia spill, and their effects on the environment and our health. And that’s the heart of the problem. Crude MCHM – like untold numbers of chemicals in use today – simply has not undergone adequate safety testing. The general public, EPA, university researchers, health officials and even the manufacturer don’t know enough about it.

“Innocent until proven guilty” defines our criminal justice system, but that’s a terrible framework for toxic chemical regulation. The better course is to allow chemicals in commerce only after they have been proven safe and to have clear rules about what information EPA and the public should have about every substance on the market.

Although the draft bill would make availability of safety information a factor in determining whether a chemical is high or low priority, the provision is not strong enough. Without access to rigorous safety testing information, it’s too easy for chemicals like Crude MCHM to fly under the radar. Furthermore, the bill would prevent states from taking any action to restrict a chemical to protect their citizens once EPA has put it on either the high or low priority list

We need reasonable certainty, not doubt, when it comes the chemicals that pollute our water, our air and food and ultimately our bodies. The current House draft would fail the people of West Virginia in the Elk River watershed, and it would put every other community at risk, too. 


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