Read the full article by Wendy Wagner and Will Walker (UNDARK)
“WHEN LIVESTOCK BEGAN to mysteriously perish on a farm in Parkersburg, West Virginia, during the 1990s, it took a vexed farmer, a relentless corporate attorney, and serendipity to figure out that the deaths were linked to the disposal of a toxic chemical from a nearby DuPont facility. The chemical, perfluorooctanoic acid (PFOA), otherwise known as C8, had been used widely in consumer and industrial products dating at least back to the 1950s. But its toxicity went undetected by the normal channels of corporate inspection and government regulation.
Today, PFOA and other per- and polyfluoroalkyl substances (PFASs) — commonly referred to as ‘forever chemicals‘ due to their persistence in the environment — are at the center of a global contamination crisis. But they are only the tip of the iceberg: They represent just a fraction of the more than 40,000 largely unanalyzed chemicals sold in the U.S., a number that is sure to keep growing.
However, despite the 100 or so pages of statutory text that seem to suggest otherwise, U.S. law barely engages in any meaningful regulation of these chemicals. How could that be?
The underlying legal design of the chemical regulatory program — its basic architecture — deserves the brunt of the blame. Under existing law, chemical manufacturers have no legal obligation to test or assess the toxicity of their own chemicals. That burden rests primarily with the underfunded and understaffed Environmental Protection Agency (EPA), which thus serves as Americans’ main line of defense against toxic chemicals. EPA regulators, not manufacturers, are responsible for evaluating the entire universe of chemicals manufactured in the U.S. They are tasked with digging through the scientific literature on each of the 40,000-odd chemicals produced in the U.S. and guesstimating which ones seem dangerous enough to prioritize for further testing and analysis. The regulators must then order the relevant testing and, ultimately, conduct risk assessments based on the limited toxicity and exposure data available to determine whether additional restrictions are needed. To top it off, a manufacturer can submit unlimited comments and ultimately sue the EPA if it can argue that the agency ‘arbitrarily’ ignored or misused relevant research in the course of an assessment.
It is not surprising, then, that EPA has banned only a handful of chemicals in over 40 years.
As if the agency’s burden wasn’t heavy enough, chemical manufacturers commonly use legal loopholes to make the regulatory job even harder. For instance, manufacturers have classified more than 10,000 chemicals as ‘trade secrets’ — a designation that shields a chemical’s identity from public view and prevents agency staff who lack special legal clearance from viewing the files associated with it. Since a large number of these trade secret claims turned out to be unjustified, Congress in 2016 required the EPA to systematically review the legitimacy of at least a subset of chemicals classified as trade secrets. However, more than 2,000 trade-secret chemicals remain in the EPA’s queue awaiting review. In the meantime, many government and academic scientists cannot even learn the names of these industrial chemicals, much less test them for safety.
The permissive regulatory framework also allows manufacturers to throw regulators off the scent by commissioning and funding their own research. Companies can hire hand-picked scientists to conduct toxicity studies, while contractually reserving the right to control the design and interpretation of the experiment and to dictate whether the findings are made public. Since most of this research is unpublished, it is not encumbered by the conflict-of-interest standards imposed by scientific journals…”