Toxic trash and chemicals are everywhere in our environment; newly overhauled federal legislation could help cut down on what industry releases.

Chemical Reform Passes, But Tribal Nations Lose Step with States Under Revised Law

Terri Hansen

We are exposed to chemicals found in our homes, our cars, our cleaning and personal care products, the food we eat, and releases into the environment as a result of their manufacture, processing, use and disposal.

Newly signed legislation could help remedy this. President Barack Obama signed the much-anticipated overhaul of the Toxic Substances Control Act (TSCA) on June 22, the first update to the law in nearly 40 years. In expanding U.S. Environmental Protection Agency (EPA) authority to regulate chemicals that are introduced into the environment, the new law preserves some state regulatory power over industry. However, it does not do the same for tribes. But overall, proponents say, it is much more effective than the previous law.

According to the EPA’s Office of Chemical Safety and Pollution Prevention, research shows that vulnerable groups, including low-income, minority and indigenous populations, are disproportionately impacted by, and thus particularly at risk from, chemicals. Moreover, Native Americans may be among those whose health is most affected by chemical exposures.

Adverse reactions to chemicals are evenly reported at 16 percent among all ethnic and racial populations in California and New Mexico Behavioral Risk Factor Surveillance Surveys, except among Native Americans, who report a higher prevalence of sensitivities to chemical exposures. (Similar studies omit the American Indian/Alaska Native population.)

The Indigenous Environmental Network was in part founded on the unusually high number of complaints from Native Americans in the 1990s about adverse health reactions to chemicals, Executive Director Tom Goldtooth told ICTMN in 2014.

A year prior, the National Congress of American Indians (NCAI) had pointed to needed provisions for tribal nations under the various reform packages being proposed.

The final version gives the U.S. Environmental Protection Agency (EPA) broad, new authority to regulate, test and ban chemicals, and mandates that the agency update its inventory of existing chemicals within six months. It requires that EPA deem a new chemical safe before it enters the market. The EPA will have to act on persistent, bio-accumulative, and toxic substances, and ensure that chemicals are safe for vulnerable groups such as infants, seniors, and chemical workers.

The original TCSA was never acted on after its passage in 1976, meaning that tens of thousands of chemicals were never reviewed for their safety, while hundreds of new chemicals were introduced year after year with virtually no oversight. Companies hid their chemical formulas from scrutiny by claiming they were trade secrets, even from medical professionals treating patients potentially sickened by a chemical exposure.

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Dianne Barton, chair of the National Tribal Toxics Council (NTTC), called the signing of TSCA “a huge step forward in keeping dangerous toxics out of commerce.”

The previous rule was notoriously ineffective, Barton told Indian Country Today Media Network.

“It did not give EPA much authority to effectively ban toxics in an efficient manner,” she said. “This is why individual states like California, Washington, Oregon and others stepped in to implement state bans. The new TSCA preempts the ability of states, but holds the promise of stronger federal control.”

The reformed TCSA gives industry new protections against state regulations, though it would preserve some of the state’s authority. But it failed to preserve any authority of tribal nations.

Tribal nations have become increasingly vulnerable to toxic chemical exposures from ecosystems that have been degraded by legacy contaminants, by ongoing authorized contaminant discharges, and by the continued release of recognized but unregulated chemicals such as flame retardants and endocrine disrupting compounds, the NCAI said in a 2015 resolution that urged Congress to modify the then proposed TSCA to incorporate Treatment-as-a-State status for tribal nations.

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According to the NCAI, other federal laws include provisions designating Treatment-as-a-State status for qualified federally recognized Indian tribes. The Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, the Federal Insecticide, Fungicide and Rodenticide Act are all examples.

The updated TSCA no longer recognizes tribes as equivalent to states, Barton said. The final bill failed to reserve the same or similar rights and authorities to tribal nations as it did to states, such as to receive confidential business information if needed for the protection of the environment, emergency response and law enforcement purposes, or to enforce federal standards within state boundaries, or to participate in grant monies under TSCA Section 28 State Programs, as the earlier version did.

Barton said an organization called the Environmental Council of States has asked Congress to fully fund programs for the states in lieu of state preemption under the reformed TSCA.

“The NTTC will need to advocate for equivalent programs for tribes,” she said.

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