Toxic chemical rules pose test for Biden

WASHINGTON — The Biden administration is preparing to impose some of the first new rules in a generation to restrict or ban an array of toxic chemicals that are widely used in manufacturing, presenting the White House with tough choices between its economic agenda and public health.

Many of the substances in question are important to industries that President Biden has backed through other policies intended to bolster global competitiveness and national security, such as semiconductors and electric vehicles.

Corporations are framing the decisions about new regulations for an initial group of toxic chemicals as putting at risk the administration’s drive to nurture the American economy of the future. Environmental and public health groups are stressing the need to focus on protecting workers and communities from substances known to carry health risks, such as cancer, liver and kidney damage and infertility.

A major lobbying clash is already underway. Chip makers, the burgeoning electric vehicle industry and other companies, including military contractors, are pressuring the administration to water down the new rules, saying the repercussions of a ban or new restrictions could be crippling.

“If the national security batteries do not perform as designed, then missiles don’t fire, fighter jets crash, and satellites go dark,” Aaron Rice, the director of environmental health and safety at EaglePicher Technologies, a Missouri-based battery manufacturer, wrote in a letter to the Environmental Protection Agency objecting to expected restrictions on two chemicals the company uses.

Boeing, Cummins, Ford, General Motors, General Electric and dozens of other companies have intervened with the E.P.A. directly or through trade associations to pre-emptively ask for exemptions.

The corporate lobbying has provoked an equally intense response from public health advocates, who argue that the chemicals in question have caused dozens of deaths or thousands of illnesses, particularly affecting Black and Latino communities near industrial zones in Texas, Louisiana and other states.

The E.P.A., the public health experts argue, can protect public health, combat climate change and promote other new technologies by pushing industry to switch to safer chemicals. The claims of disruption to economic growth, public health advocates say, are just scare tactics.

“There is nothing industry won’t say to preserve their right to poison workers and consumers to make a buck,” said Scott Faber of the Environmental Working Group, an advocacy group that has been pushing the E.P.A. to move ahead with the rules.

At issue initially are 10 chemicals that the E.P.A. has identified as among the most toxic threats. The agency has completed evaluations on nine of them, with the first three of these proposed chemical rules already undergoing review at the White House. Four others are expected by the end of the year.

The E.P.A. has hinted where it is headed with the new rules, issuing a series of so-called chemical exposure limits that detail how much workers can safely inhale without an increased risk of cancer, liver disease or other ailments — extremely complex calculations based on decades of studies examining human and animal exposures to the toxins.

The proposed levels in many cases are many times lower than current workplace standards, which are decades old, generating predictions by chemical industry players of enormous impact on existing operations at manufacturing and processing plants.

Both sides are deluging the White House with their arguments.

The effort at the E.P.A. is being overseen by Michal Ilana Freedhoff, a chemist who spent more than two decades as a staff member in Congress working with Democrats who wanted to strengthen the government’s powers to regulate toxic chemicals.

The rail accident last month in East Palestine, Ohio, which released toxic substances made with some of the same chemicals now being examined for safety, has focused additional attention on the threat, Ms. Freedhoff said. But the risks from toxic chemicals are present in areas across the United States on a daily basis, particularly for families who live close to factories that manufacture or use them.

“It is literally a matter of life and death for people all across America,” Ms. Freedhoff, the head of the E.P.A.’s Office of Chemical Safety and Pollution Prevention, said in an interview at the agency’s headquarters.

The pace of progress on toxic chemical regulation in the United States has been extraordinarily slow, even by the glacial standards of Washington’s bureaucracy.

Congress passed the Toxic Substances Control Act in 1976, giving the E.P.A. the power to regulate toxic chemicals. But by 1991, key parts of the law were invalidated by a federal appeals court ruling after industry manufacturers challenged an effort to ban asbestos, a known carcinogen.

For the next 25 years, the United States effectively had no operative toxic chemical law. It was not until 2016 that Congress expanded the E.P.A.’s powers to fill the federal policy vacuum.

Given the decades of regulatory inaction, officials at the E.P.A. acknowledge that there are thousands of chemicals in the United States that have never been properly evaluated for the risk they present based on the specific ways they are used.

As a starting point, the agency identified 83 of the most toxic threats: chemicals that are “known human carcinogens and have high acute and chronic toxicity.” It then narrowed that list in 2016 to 10 of these chemicals as the initial focus of the regulatory process.

But more delays followed. When President Donald J. Trump took office in 2017 — and hired several chemical industry executives to help oversee the revised law — the E.P.A. revised the way it defined “risk evaluation,” bowing to chemical industry lobbying but generating protests from longtime agency employees and lawsuits from public health advocates.

When Mr. Biden came into office two years ago, the pendulum swung back. The E.P.A. moved to define more broadly how it would consider toxic chemical hazards, calling the restrictions that the Trump administration had imposed evidence of how “political interference sometimes compromised the integrity of our science.”

The E.P.A. is now evaluating not just contamination in manufacturing plants but also threats to the public at large, through contaminated air or water or at landfills.

The agency also assumes that workers do not always wear respirators or other protective equipment based on a concern that some employers do not mandate these basic safety measures, a decision that has provoked intense protests from chemical companies and industrial users. Workers are already protected, companies say, or the chemicals are used in closed-loop systems where the workers are not exposed at all — except if there is an accident.

Ms. Freedhoff said the E.P.A. had an obligation to protect both workers and the public. She said she was still haunted by the deaths of children who drank contaminated drinking water in North Carolina and Massachusetts decades ago.

The chemical implicated in the drinking water contamination, trichloroethylene, also known as TCE, can cause sudden death or kidney cancer if a person is exposed to high levels and other neurological harm even at lower exposures over a long period.

Yet the E.P.A.’s recently completed risk-evaluation studies found that as much as 250 million pounds of TCE are still produced in the United States annually to make refrigerants and remove grease from metal parts. It is also used in carpet cleaners, laundry spot removers and even hoof polish for horses.

Based on the new Biden-era risk evaluation, TCE presents an “unreasonable risk of injury to health or the environment” in 52 of the 54 known ways it is used as an industrial and consumer product, the E.P.A. determined. That also includes the way in which it is disposed.

“That is locked into my whole moral compass,” Ms. Freedhoff said, referring to TCE, which the E.P.A. toxic chemical program has not regulated in the more than three decades since the government first listed it as a probable carcinogen. “We have to take on TCE. That rule has to be done. It has to be protective.”

The agency’s risk assessments for seven other chemicals — 1-bromopropane, carbon tetrachloride, C.I. Pigment Violet 29, cyclic aliphatic bromide cluster, methylene chloride, n-methylpyrrolidone, perchloroethylene — reached similar conclusions of widespread “unreasonable risks,” as did one completed during the Trump administration for asbestos.

The toxic chemical law requires the E.P.A. to move immediately to issue regulations to eliminate unreasonable risks by picking from a range of options such as banning the chemical, prohibiting certain types of uses and requiring special health precautions.

The E.P.A. has imposed air pollution restrictions on some of these same chemicals, but manufacturing plants often have mishaps that result in releases despite the rules. Public health advocates and some state health officials have pressed the E.P.A. to consider the cumulative impact of exposures to different chemicals in certain communities near clusters of manufacturing plants.

“All sources of exposure must be considered,” said a letter sent by environmental officials from California, New York, Oregon and Washington State.

The revised law gives the E.P.A. the power to grant exemptions to chemical regulations if a ban or restriction “would significantly disrupt the national economy, national security or critical infrastructure,” a process that may simply mean companies have more time to phase in a less toxic replacement.

This language has generated a flood of exemption requests, including from a coalition of companies that manufacture lithium batteries used in cellphones and electric vehicles. The batteries use n-methylpyrrolidone, or NMP, which the E.P.A. concluded increases the risk of miscarriages and male infertility.

“It is critical for E.P.A. to recognize that there is no substitute for NMP in our manufacturing processes,” the battery-industry trade association wrote in a letter to the agency before requesting an exemption, arguing that it had ways to safely use the chemical. “The federal government should be taking steps to promote — not impede — the growth of our rechargeable battery technology in the United States.”

The Semiconductor Industry Association, whose members include Intel, GlobalFoundries, Samsung and most of the other major global chip manufacturers, has sent letters to the E.P.A., challenging its assumption that the way the companies use NMP presents a risk to its employees.

Several other industry players pointed out to the E.P.A. that chemicals it could soon impose limits on are essential to manufacture new air conditioning refrigerants that do not deplete the ozone layer or contribute to climate change.

The American Chemistry Council, the country’s largest trade association representing the $800 billion-a-year chemical industry, has hosted over 100 virtual and in-person meetings for members of Congress and their staff to try to persuade them to more closely oversee the E.P.A.’s actions. Those events included a reception last month on Capitol Hill for newly elected members of Congress, mostly Republicans.

“They’ve heard from us, they’ve heard from other stakeholders that work with the E.P.A.,” said Ross Eisenberg, the chief lobbyist for the American Chemistry Council, which spent nearly $20 million on lobbying last year, the most in its history.

House Republicans, following these appeals, introduced a bill last month that would require the E.P.A. to more broadly weigh “economic, societal” costs before it could reject the use of a new chemical.

Corporate executives and lobbyists have also pressed White House officials to intervene. Executives from Halogenated Solvents Industry Alliance — whose members make TCE and other chemicals — predicted at a White House meeting in December that there would be dire economic consequences if the E.P.A. moved ahead with tougher workplace inhalation limits.

Companies have also made clear that they intend to sue to try to block the rules once they are imposed.

“Such levels, if mandated, would eliminate U.S. manufacturing of tires, paper, many plastics and many other important products,” said a statement presented on behalf of a trade association and Olin Corporation, a major chemical manufacturer.

The new rules, Ms. Freedhoff conceded, would mean higher costs in some cases. But she said she was also convinced that the United States could make progress on combating climate change and expanding major industries like semiconductor manufacturing while still reducing health threats.

“We have to change the way industry does things in order to protect human beings,” she said. “Right now, the human beings are assuming the cost.”