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Reform of Toxic Chemicals Law Collapses as Industry Flexes Its Muscles

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This article by investigative journalist Sheila Kaplan is the first in a series supported by the Investigative Reporting Workshop at American University's School of Communication. Politics Daily will publish the remaining installments in the weeks to come.

Fire retardants in baby blankets, nano-particles in cosmetics, plastics in water bottles and anti-bacterial agents in soaps.

Experts call these and other chemicals emerging contaminants -- compounds that were once thought to be safe, but which scientists now believe may pose a danger to human health.

How those chemicals get into your house -- and your bloodstream -- is no surprise: Loopholes in the federal law that regulates toxic chemicals have allowed manufacturers to sell them without first proving they are safe.

In recent years, however, dozens of studies -- many funded by the federal government -- have shown that chemicals that are ubiquitous in the environment and in consumer goods can cause cancer, wreak havoc on hormones, damage the developing brain, depress the immune system and alter gene expression-among other problems. Earlier this year, the President's Cancer Panel reported, "The true burden of environmentally induced cancers has been grossly underestimated." And Linda Birnbaum, director of the National Institute of Environmental Health Sciences, which funded many of the top studies, told Congress, "Research has revealed the heightened vulnerability of fetal, infant and child development processes to disruption from relatively low doses of certain chemicals." Birnbaum, like EPA chief Lisa Jackson, urged Congress to revamp the federal law that regulates toxic chemicals, giving the agency greater authority to protect the public.

Last fall, a group of congressional Democrats vowed to overhaul the 34-year-old Toxic Substances Control Act (TSCA) to make it easier for EPA to take dangerous chemicals off the market and ensure that the substitutes are safe. But one year, six congressional hearings and 10 "stakeholder sessions" later, the bills are dead, a testament to the combined clout of $674 billion chemical industry, the companies that process their compounds into air fresheners, detergents, perfumes, cosmetics, toys, medical devices and other consumer goods, and the stores that sell them. Their campaign to block reform of the Toxic Substances Control Act won out over EPA's support, an unprecedented campaign by public health advocates fueled by the industry's own admissions that the current law does not fully protect public health.

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Sen. Frank Lautenberg (D-N.J.), and Reps. Bobby Rush (D-Ill.) and Henry Waxman (D-Calif.), who introduced reform bills, say they'll reintroduce them next year. But industry lobbyists will also be back, making it likely that the stalemate will continue -- even if the Republicans don't gain any additional seats in Congress.

Change Seemed Possible

One year ago, advocates said, the outlook for reform of the toxic substances act was good. According to interviews with congressional staff, Lautenberg, Rush and Waxman were optimistic about winning support. Jackson, the EPA's new administrator, announced early on that strengthening chemical regulation was a top priority. The industry itself, wary of the patchwork of regulations springing up in statehouses around the country, which targeted one chemical or another, said that a uniform federal law might be easier to deal with than 50 separate laws. Some of the chemical companies were already dealing with new safety regulations adopted in Europe.

In April, Lautenberg introduced the Kid Safe Chemical Act, and in July, Rush and Waxman followed with the Toxic Chemicals Safety Act of 2010. The heart of both bills was a shift in accountability to make chemical companies responsible for proving their products safe before putting them on the market.

"We're saying those who make the chemicals . . . ought to be responsible for testing them first before they're released to the public, instead of having the EPA play detective to search and try to find problems," said Lautenberg. The bills would have required businesses to reveal which chemicals they are using, and show that there is a "reasonable certainty that no harm will result" from all intended uses over the life cycle of a chemical. It would also require EPA to consider aggregate exposure to chemicals from many sources when making a safety determination, and to take into account vulnerable populations, such as children or those with immune disorders.

From spring into summer, Rush and Waxman sponsored 10 "stakeholder" meetings with representatives from EPA, businesses such as DuPont, Procter & Gamble and Dow Chemical, and lobbyists from the chemical industry's main trade groups, among them:

The American Chemistry Council, the industry's largest alliance;
- The Society of Chemical Manufacturers and Affiliates, whose members produce "batch" chemicals for use in fire retardants, pharmaceuticals, agriculture and biotechnology;
- The Consumer Specialty Products Association, whose members put their names on products ranging from air fresheners to floor polish;
- The Personal Care Products Council, which represents cosmetics companies;
- The Grocery Manufacturers of America.

It's a group that can afford to buy a lot of influence. Federal records show that in 2009 the chemical industry spent more than $100 million lobbying Congress and the federal agencies.

In the first six months of 2010 the industry spent more than $40 million on lobbying. Their combined campaign contributions so far in the current election cycle come to more than $10 million.

Individual chemical industry lobbyists were also generous (see related chart). James Massie, who worked on reform for CropLife America, the main trade group for pesticide companies, donated $104,150, including $58,900 to the Democratic Congressional Campaign Committee. The American Chemistry Council donated more than $305,000 to federal candidates, plus another $50,000 to the Democratic Governors Association.

Koch Industries, whose subsidiary Georgia Pacific is struggling with proposals to regulate formaldehyde in its wood products in the face of increasing evidence of cancer and other health hazards, has donated $1.5 million to federal candidates so far this cycle, with 86 percent going to Republican candidates.

Likewise, Exxon-Mobil has donated 83 percent of its $762,099 to Republican federal candidates. Procter & Gamble, which is concerned about the Food and Drug Administration's review of several of its products containing the anti-bacterial agent Triclosan, as well as reform of the toxic substances act and other issues, has covered both parties more evenly, giving 56 percent of its $388,878 to the GOP.

BASF, which makes Triclosan, has donated more than $250,000 to federal candidates this year.

The generosity extends to congressional caucuses and their foundations. Last year, for example, Wal-Mart donated at least $500,000 to the Congressional Black Caucus Foundation. Wal-Mart lobbies on many issues, among them the revamping of chemical regulations. This fall's Congressional Black Caucus Foundation annual legislative conference, the groups' premier event, drew more than $250,000 from ExxonMobil, and at least $50,000 from Kraft Foods, a division of Altria (formerly known as Philip Morris Companies Inc.), which lobbied this year against a Senate measure to ban BPA in food and beverage containers. Wal-Mart gave $105,000 more so far this year to the Congressional Black Caucus Foundation and its legislative conference. Both Wal-Mart and ExxonMobil are also listed as annual $200,000 donors to the Congressional Hispanic Caucus Institute.

The industry's clout is more than financial, however. It's a rare congressional district that doesn't have a chemical company, processing plant or major purveyor of consumer goods -- a point made more than once during the negotiations, and which helped keep some Democrats from signing onto the bill.

Behind Closed Doors

The stakeholder sessions included representatives from the environmental and consumer coalitions, but were closed to the press. Attendees interviewed said that at first EPA and the Democratic staff believed industry wanted to negotiate, so they conceded some ground, especially on the thorny issues of regulation of mixtures and treatment of confidential business information. But as the Democrats began to appear more vulnerable in the upcoming election, staffers and environmentalists came to believe industry was trying to run out the clock.

"The [industry] adopted a public stance for reform, so they could have a seat at the table and try to shape it," said Andy Igrejas, national campaign director of Safer Chemicals, Healthy Families, a well-funded coalition of environmental groups and others working to tighten chemical regulation. "At first we were taking them at their word that we might disagree on what reform looks like, but they were coming to the table to hash something out. But they just really used the opportunity to demagogue the bill and get other trade associations to oppose it."

Igrejas's suspicions seemed to be well-founded when Representatives Rush and Waxman held a hearing in July. The expected supporters testified in favor of the bill -- Stephen Owens from EPA, and Richard Denison, senior scientist with the Environmental Defense Fund, among others. But former Democratic congressman Calvin Dooley, who runs the American Chemistry Council, surprised the sponsors by slamming the bill, calling it unworkable, and making it clear the industry was nowhere near accepting it.

"The safety standard as established in this bill sets an impossibly high hurdle for all chemicals in commerce that would produce technical, bureaucratic and commercial barriers that would stifle the manufacturing sector," Dooley said. He added, "Even more troubling are the provisions in the bill that would identify chemicals that would be subject to a safety determination." Dooley said a priority list would stigmatize manufacturers -- a reversal from the chemical council's earlier stance.

Daniel Rosenberg, a longtime attorney for the Natural Resources Defense Council, said advocates for strengthening the bill should have seen it coming. "I'm not sure that industry was ever really for reform," he said. "They haven't proposed anything concrete since they issued a set of principles more than a year ago, and now they are backing away from those. They still use the rhetoric of reform, but there doesn't seem to be anything real behind it. Thus far they have said 'no' to just about everything proposed in the legislation or by EPA. That shouldn't be too surprising, since they have opposed reforming TSCA for years. They've always said it works and that 'People are protected, and there is nothing for the public to be concerned about.' They were against TSCA reform before they were for it, and I suspect the conversion, if it ever took place, may have been short-lived."

One of the biggest boosts for the chemical industry came from Charles Auer, who retired in January 2009 as head of EPA's toxics office. In an unusual deal between the Democrats and the Republicans on the committee, Auer was permitted to add a 16-page critique of the bill into the record after the hearing. Auer echoed Dooley's remarks, saying the proposal was overly burdensome to industry, confusing and would discourage innovation. He was quick to note that his comments were not intended to benefit any chemical company clients. But Auer is one of the chemical industry's most important advisers ever to push through the revolving door between government and industry, having launched a consulting firm that is an affiliate of Bergeson & Campbell, one of Washington's top chemical industry law-and-lobby shops. (See sidebar for other revolving door newcomers.)

"We hope Charlie will be a very powerful wake-up call," said Lynn Bergeson, a founding member of the firm, regarding Auer's written testimony, which was covered in the trade press, and which identified him as a former EPA official -- but not an industry consultant.

Asked if he believed there are hazardous chemicals in commerce right now, Auer told the workshop, "My guess is it's not a high proportion, but the fact of the matter is, you don't have the data and understanding to answer those questions," he said, meaning no one -- not scientists, the public or EPA -- knows.

Bill Allmond, a lobbyist with the Society of Chemical Manufacturers, says his organization supports modernization of the law in theory, but that the House and Senate bills are probably the worst pieces of legislation he's seen in a decade. "We had higher expectations, given the fact that there is a consensus among government and industry, that this 30-plus-year-old regulation needs to be reformed. After lengthy conversations with Capitol Hill and the appropriate committees, we still saw a bill that is extremely unworkable, and would do much more harm than good."

A New Strategy

Supporters of reform concede that EPA has not always made the most of the legal authority it already has. Some critics note that EPA's penchant for caving in to industry pressure, even when the law permitted action, is well documented through both Democratic and Republican administrations. In recent years Congress' own watchdog agency, the Government Accountability Office, has repeatedly reprimanded EPA officials for failing to set standards on many risky chemicals -- or for setting them too low.

Perchlorate, a byproduct of rocket fuel and a major source of water pollution, can alter thyroid hormones; TCE, an agent used as an industrial degreaser, may cause cancer; atrazine, a pesticide, is a neurotoxicant -- and all three of these compounds, and others, were caught up in an endless review cycle for years. The agency also failed over two decades to recognize that exposure to low levels of lead and mercury were diminishing the brainpower of generations of American children.

"I do think part of the issue was political will," said Denison, the senior scientist at the Environmental Defense Fund, referring to the combination of loopholes and the lack of a desire to regulate. "For the last decade or more, before the new administration came in, the emphasis has been on voluntary programs. There was a very high hurdle to move things to a regulatory domain. The new leadership came in and looked at the core performance of those programs and said, 'We are going to do everything we can do using our existing authority.' They are running into many of the same obstacles, but the political will has changed."

The bleak record prompted states to fill in the gap. Over the past few years, more than 20 states have moved to restrict BPA (bisphenol A, chiefly used in plastic products) or fire retardants. In California last month, the state put the final touches on its Green Chemistry Initiative, a mini-toxic substances control act designed to restrict toxic chemicals while encouraging a move to greener alternatives.

These state actions may not lead the industry to accept federal regulations, but they have led to generous campaign contributions to state candidates, political parties and ballot initiatives. Outside the Beltway, chemical company interests donated upward of $18.4 million to state political coffers for election years 2007, 2008, 2009 and 20010, according to the National Institute on Money in State Politics.

Some of the lobbyists are working on two fronts, in Washington and the state capitals. J. Scott Jennings, who was White House deputy political director under President George W. Bush and a longtime deputy to Karl Rove, is now lobbying for Arysta LifeSciences, the U.S. subsidiary of a Japanese chemical firm that makes a fumigant called MIDAS, which uses methyl iodide. The chemical was approved by EPA during the Bush administration despite the protests of many independent scientists, who sent a petition citing significant health concerns. The next job for Jennings and his company, Peritus Public Relations, was to win approval for MIDAS in Sacramento. The lobby campaign appears to have been successful (they are still awaiting approval). But this summer, California Democratic Sen. Diane Feinstein contacted EPA, citing concerns about fetal death, thyroid cancer and neurotoxicity and asking them to revisit the issue. Feinstein said she has not heard back yet.

In meetings this fall, the chemical industry and its allies have made it clear they will continue to challenge the reform effort. But Lautenberg remain optimistic. "I remain committed to working across the aisle to create a system that ensures the safety of industrial chemicals, and does so in a way that maintains the U.S. chemical industry's leadership across the globe," he said. "My Safe Chemicals Act first and foremost protects public health and the environment, but it also recognizes the need to get new chemicals to market and tailors testing requirements to avoid unnecessary or duplicative tests. Once I have a Republican partner in this effort, we can work together on the bill in a way that works for both industry and for public health."

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