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The Toxic Substances Control Act Under Biden: Impact on Tribal, Fenceline Populations

Nov. 30, 2020, 9:01 AM

Environmental laws can play important roles in addressing social injustice. The Toxic Substances Control Act (TSCA), the U.S. law for chemical management, has powerful tools to identify people who may be disproportionately affected by exposure to chemicals, and if risks are found, to mitigate those risks.

With the Biden administration poised to assume leadership over TSCA implementation in 2021, it is timely to look at how one of TSCA’s requirements, the consideration of impacts on subpopulations, may be applied in the evaluation of chemical risks.

This provision could be used in a number of situations where people may be affected by exposure to chemical pollution. Two types of subpopulations, however, have for years faced particularly significant impacts from chemical exposure and therefore should be priorities:

  • Fenceline communities, which are communities immediately adjacent to facilities that may release pollutants into the environment; and
  • American Indian and Alaskan Natives (for simplicity referred to here as “tribes,” recognizing that not all native people are in federally recognized tribes).

TSCA Amendments and Susceptible Subpopulations

Amendments to TSCA through the 2016 Frank R. Lautenberg Chemical Safety for the 21st Century Act made significant changes in U.S. chemicals law. One important addition was the requirement that the Environmental Protection Agency (EPA) consider potentially exposed or susceptible subpopulations in its administration of the TSCA.

The statute defines these subpopulations as “a group of individuals within the general population identified by the Administrator who, due to either greater susceptibility or greater exposure, may be at greater risk than the general population of adverse health effects from exposure to a chemical substance or mixture, such as infants, children, pregnant women, workers, or the elderly” (15 U.S.C. 2602).

The act requires the EPA to identify high priority chemicals for an evaluation of their risks to health or the environment. If the EPA finds unreasonable risks, action must be taken so that the chemical no longer presents such risks. Six months after identifying a chemical as a high priority, the EPA must issue a document outlining the scope of the risk evaluation. Both the prioritization and scoping processes are opportunities to identify subpopulations that will be part of the risk evaluation.

TSCA leaves it to the EPA to determine what makes a subpopulation potentially exposed or susceptible. Some people may have exposures of greater magnitude, frequency, and duration than the general population, for reasons such as the work they do, the products they use, or where they live.

Susceptibilities may be due to such things as a person’s life stage, genetic makeup, or underlying health conditions. Susceptibility also could result from social and economic inequalities. For instance, if a community faces high rates of poverty or high unemployment, or poor access to health care and social services, these socioeconomic stressors may themselves contribute to susceptibility to illness from exposure to chemical pollution.

The scoping of a TSCA chemical evaluation should identify whether fenceline communities are subject to exposures or susceptibilities that may put them at greater risk than the general population. If they are, then the evaluation should include them as a relevant subpopulation.

While other laws also have provisions for addressing fenceline exposure, ongoing, unresolved environmental justice concerns suggest that employing TSCA’s subpopulation provision can contribute to much-needed progress in identifying, understanding, and mitigating chemical risks to people living at the fenceline.

Cultural Considerations in Assessing Risks

Like fenceline communities, tribes may also experience place-based exposures, such as geographic proximity to chemicals-related activity or disposal, or high consumption of foods, such as fish, in which chemicals may concentrate. With respect to both exposure and susceptibility, tribes also face culture-based considerations.

The well-being of tribal people is tied to practices that are essential to sustaining tribal identity and culture, such as the consumption of certain foods and use of natural resources for ceremonial, medicinal, and other traditional purposes.

An important issue for tribes as subpopulations is the extent to which negative impacts on their culture—some caused by chemical contamination, some being the result of other factors—create susceptibilities to adverse health effects from chemical exposure.

Prioritizing fenceline communities and tribes in the application of TSCA’s subpopulations language will require incorporating socioeconomic stressors into chemical risk evaluations.

There are methodological considerations when factoring such stressors into a characterization of chemical risks. It will therefore be important to bring this issue to the EPA’s Science Advisory Committee on Chemicals, either as a stand-alone issue or as part of peer review of individual chemical evaluations.

Taking fenceline communities and tribes into consideration when identifying potentially exposed or susceptible subpopulations for TSCA chemical risk evaluation presents science and policy challenges for the EPA, but they are challenges worth meeting.

The Biden administration’s robust employment of TSCA’s requirements for subpopulations would be an important step forward for sound science, good public policy, and the advancement of environmental and social justice in the U.S.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners

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Jeffery Morris is the founder of Jeff Morris Solutions LLC, which helps clients address chemical regulation issues to meet business and environmental objectives. He spent more than 30 years with the federal government, including serving as the director of the EPA’s Office of Pollution Prevention and Toxics, which is responsible for regulating the U.S. industrial chemicals sector. He also led the implementation of the 2016 amendments to the Toxic Substances Control Act.

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