Toxic Substances Control Act allows companies to conceal information on chemical identities, risks; Congressional reform effort would not fix problems
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Pelham, MA – As fracking for gas and oil exploded across the landscape, federal law enabled chemical makers to win approval of fracking and drilling chemicals by EPA with no health testing and sweeping confidentiality claims that deny citizens even the most basic information on the chemicals’ identity, according to a two-year investigation by the nonprofit Partnership for Policy Integrity (PFPI). More than 17 million Americans in the contiguous 48 states live within one mile of an active oil or natural gas well where these chemicals may be used.
Toxic Secrets: Companies Exploit Weak US Chemical Rules to Hide Fracking Risks was based on a first-ever study of EPA’s health assessments and regulatory determinations for 105 fracking and drilling chemicals reviewed under the Toxic Substances Control Act’s (TSCA) New Chemicals program between 2009 and 2014. Partnership for Policy Integrity (PFPI) received the records under a Freedom of Information Act (FOIA) request and separately obtained manufacturers’ submissions for most of the 105 chemicals from EPA’s public docket. Passed in 1976, TSCA is supposed to protect the public from chemical risks in part by requiring review and regulation of new chemicals before they are used commercially.
However, the investigation found that:
- Health studies were available in the public docket in only 2 percent of cases (2 of 99 cases). Companies claimed that they provided health testing data for 12 of 99 chemicals, but health data from 10 of the 12 were missing. In at least two of these 12 cases, companies claimed the studies as confidential. Submissions for six of the 105 chemicals were missing from EPA's public docket entirely.
- EPA requested health studies in only five cases, despite expressing health concerns in 88 cases, including irritation to skin, eyes and mucous membranes; lung effects; neurotoxicity; kidney toxicity; and developmental toxicity. TSCA does not mandate health testing before a fracking chemical is put into widespread use.
- EPA approved almost all of these chemicals for manufacture, and the agency subsequently received notice that 37 of 70 chemicals expected to be produced at higher volumes (more than 22,000 pounds to millions of pounds per year) were, in fact, manufactured. The agency approved all of the 33 chemicals companies expected to be produced at lower volumes (limited to 22,000 pounds per year or less).
“Chemical companies and the EPA are basically conducting a chemical experiment on the general public,” said Partnership for Policy Integrity Senior Counsel Dusty Horwitt. “Chemical reform bills that have passed the House and Senate do not fix the problem.” Horwitt added. “Congress and President Obama need to fix the law to ensure that chemicals are regulated with rigorous testing and openness so that citizens can be protected and informed.”
Some citizens living near oil and gas operations have reported health problems consistent with those identified by EPA in its reviews of chemicals. “Not only did we suffer from a multitude of side effects from nose bleeds and rashes to aneurysms, but so did our pets, livestock and vegetation,” said Lisa Parr of Decatur, Tex., who, along with her husband Bob, won a nearly $3-million-dollar jury award in 2014 against a drilling company based on claims that the company’s drilling operations harmed their health. “We end up feeling like a bunch of lab rats being exposed to who knows what and our government and political officials don’t seem to care.”
PFPI also revealed that citizens are prevented from learning the identities and potential health impacts of chemicals by TSCA’s broad “confidential business information” (CBI) provisions, which allow companies to keep basic information about a chemical hidden from the public.
- For at least 59 of 70 high volume chemicals, companies asserted confidentiality claims for the chemical name, and for at least 52 out of 70 they claimed confidentiality for the Chemical Abstracts Services (CAS) numbers (unique identifiers for chemicals). Under TSCA, the EPA must protect these claims unless the Agency takes steps to challenge them; actions that the EPA has rarely taken. In at least 36 of the 70 cases, companies claimed as confidential the chemical’s trade or product name. In 64 of the 70 cases, companies claimed as confidential the expected production volume.
- Companies claimed exposure assumptions as confidential for at least 55 of 70 high volume chemicals. This is key, because the EPA assumes as a matter of policy that accidental releases such as leaks, spills, underground migration, or blowouts never occur. In these 55 cases, the public cannot know whether companies offered a more realistic view.
A growing body of evidence, including data collected by EPA itself and public statements by drilling companies, shows that leaks, spills, underground migration, and blowouts are inherent or likely in oil and natural gas extraction.
"People we have examined in southwestern Pennsylvania have reported throat irritation, respiratory effects, headaches and memory difficulties associated with gas drilling," said David Brown, a toxicologist with the Southwest Pennsylvania Environmental Health Project, a nonprofit created to assist and support residents of Washington County, Pa., who believe their health has been, or could be, impacted by natural gas drilling activities. "By collecting this health data, we’re doing the evaluations that should have been done in laboratories before the chemicals were manufactured and released. The lack of health testing and use of secret chemicals put citizens at risk and frustrate effective public health."
Congress is currently moving to amend TSCA. Bills have passed both the House and Senate, and the two houses are trying to reconcile their differences. Yet unless the bills are amended, neither would remedy the three major problems that PFPI identified during its investigation of fracking and drilling chemicals: lack of mandatory health testing, broad confidentiality provisions that are biased toward industry secrecy, and unrealistic exposure assumptions that chemicals are not accidentally released.
PFPI thanks The Heinz Endowments, the Park Foundation and the Tides Foundation for their generous support of this work. Photo is from EcoFlight and shows a drilling rig and well pad in close proximity to a residence in Weld County, Colorado.
 According to calculations of the energy science and policy institute, PSE Healthy Energy.