IN 1976, President Gerald R. Ford signed the Toxic Substances Control Act (TSCA), giving the Environmental Protection Agency (EPA) authority to regulate production and use of industrial chemicals in U.S. commerce in the interest of protecting health and the environment from unreasonable risks. You’d think, then, that federal regulators have barred unsafe chemicals from being made and used in U.S. commerce. But that isn’t quite the case. In fact, only a tiny percentage of chemicals are regulated.
How could this be? A major reason is that the TSCA makes it nearly impossible for the EPA to take regulatory action against dangerous chemicals, even those that are known to cause cancer or other serious health effects.
The TSCA was passed largely in response to escalating concern about the effects toxic chemicals were having on humans and the environment. When the TSCA became law in 1976, it represented a progressive approach to chemical management, seeking to prevent damage rather than addressing the after-effects of chemical pollution, which was more typical of environmental legislation in the 1970s.
TSCA was enacted with three main tenants in mind: (1) develop adequate data regarding the hazards and risks posed to humans and the environment by specific chemicals; (2) create the authority to regulate chemicals that posed an “unreasonable risk of injury to human health or the environment”; and (3) exercise this authority in a way that would not impede economic and technological progress. To this end, the TSCA required EPA, for the first time, to maintain an inventory of all chemicals that have been in U.S. commerce since 1976, and authorized EPA to screen existing and new chemicals used in manufacturing and commerce to identify potentially dangerous products or uses that should be subject to federal control.
Although the TSCA succeeded in establishing a framework, guidance, and authority for chemical risk management, the legislation immediately faltered and has proven relatively ineffective at restricting or banning chemicals that may pose an unreasonable risk to human health or to the environment. A number of contributing factors have made TSCA, though well intentioned, difficult to implement effectively.
First, chemicals on the market prior to 1976 were “grandfathered” into the system. According to EPA, the initial TSCA Inventory included approximately 62,000 chemical substances. These chemicals were permitted to remain on the market without any testing; pursuant to the TSCA, they were statutorily immune to the scrutiny new chemicals or existing chemicals with new uses are subject to. Although EPA, under Section 4 of the TSCA, does have the authority to require manufacturers to test existing chemicals, in each case EPA must make a formal finding that the chemical “may present an unreasonable risk.” This creates a regulatory Catch-22, as making such a determination requires much of the data EPA cannot legally access or cause to be generated without first making the determination.
Second, legislative loopholes have significantly contributed to the EPA’s ineffectiveness in implementing meaningful and broad chemical risk control. As the U.S. Government Accountability Office recently noted, by placing the “burden of proof” for chemical safety in the EPA’s hands, the legislation has almost guaranteed the chemical industry unfettered operations.
Under Section 5 of the TSCA, manufacturers, importers, and processors are required to notify EPA at least 90 days prior to producing or otherwise introducing a new chemical product into the United States. After notification, EPA has just 45 days (or up to 90 days if it extends the period for “good cause”) to evaluate the potential risk posed by the chemical, despite the fact it often takes years for adequate risk assessments to be completed, regardless of who performs the testing. Further, EPA is prohibited from promulgating blanket testing requirements for new chemicals; EPA must decide which chemicals warrant pre-market testing, and then design testing procedures, purely on a case-by-case basis. As a result, out of the 84,000 chemical substances currently on EPA’s Inventory, fewer than 200 have been evaluated for their effects on humans.
Even when the EPA determines that a chemical poses an “unreasonable risk,” it frequently finds itself in a court battle. For example, after determining that asbestos was a potential carcinogen at all levels of exposure, EPA promulgated a rule in 1989 prohibiting the future manufacture, importation, processing, and distribution of asbestos in almost all products. Manufacturers of asbestos products quickly filed suit and won a judgment overruling EPA’s action in restricting asbestos based on the judicial opinion that EPA had not considered “all necessary evidence and failed to show that the control action it chose was the least burdensome reasonable regulation required to adequately protect human health or the environment.”
The 1989 asbestos decision reflects how complicated it can be for the EPA to act in support of TSCA’s founding principles (especially if companies withhold information – which the TSCA gives them the right to do under its “confidential business information” protection). Since the 1989 court decision, EPA has only exercised its authority to ban or limit the production or use of an existing chemical once – for hexavalent chromium, a known human carcinogen widely used in industrial cooling towers – in 1990. In fact, since passage of the TSCA, EPA has issued regulations to ban or limit production or use of just five existing chemicals (or chemical classes) out of tens of thousands of chemicals listed for commercial use.
As a result of the federal TSCA’s ineffectiveness, certain states have attempted to add greater protection from chemical exposure. For example, California has long identified and examined “emerging chemicals of concern,” and in 2013, the state enacted the Safe Consumer Products program which requires manufacturers that sell “priority products” to perform a detailed analysis that justifies their formulation of the chemical substance or uses a safer alternative. Similarly, Washington state requires manufacturers to report children’s products sold in state that contain a “chemical of high concern to children.”
Congress, moreover, has tried repeatedly to fix the issues with the TSCA and failed. As Puneet Kollipara wrote in The Washington Post, “It’s tough to get all stakeholders involved – including chemical companies and environmental health groups – to find a middle ground.” When reforms have been proposed in the past, they typically lean toward less protection from harmful chemical substances, not greater.
For example, just last week, on March 18, the Senate Environment and Public Works Committee held a hearing on the Frank R. Lautenberg Chemical Safety for the 21st Century Act, a bill introduced by Sens. David Vitter (R-La.) and Tom Udall (D-N.M.) to reform the TSCA. The bill has been hailed as bipartisan, and has received praise by industry stakeholders on both sides of the issue – in particular, from the American Chemistry Council, Dow Chemical and the Environmental Defense Fund.
While the bill is a notable attempt to reform the TSCA, it contains three fatal flaws that need to be corrected. First, the bill eviscerates state authority by banning states from enforcing restrictions that are identical to federal restrictions (thereby preventing co-enforcement) and blocking states from taking regulatory action on a chemical at a point when EPA has merely identified the scope of a safety assessment. Second, the legislation effectively ends regulations of a majority of chemicals. The bill mandates that chemicals be separated into two tracks: High Priority chemicals, which are reviewed against safety standards; and Low Priority chemicals, which are not really reviewed at all. Whether a chemical is High Priority or Low Priority depends on a determination by EPA whether the chemical is “likely to meet” the safety standard. EPA would likely face significant pressure from chemical company’s to stretch the nebulous standard of “likely to meet.” And conspicuously, this is the one major decision in the bill that is immune from judicial scrutiny. Third, the bill adds additional regulatory hurdles after EPA determines that a chemical is unsafe. For example, although dozens of products might use a single chemical, the bill would require EPA to make a legal finding on each.
Simply stated, the Vitter-Udall bill does not take TSCA reform in the right direction. Perhaps this is not surprising, as it became apparent after the legislation was introduced that the “final draft [of the bill] originated at the American Chemical Council itself.”
When the TSCA became law in 1976, concern about chemical exposure was focused primarily on cancer and what levels of exposure would avoid population spikes in cancer. Scientific understanding of chemical effects on human health and the environment, however, was less evolved. But since 1976 scientists have linked exposure to toxic chemicals to many health risks. There is a growing recognition in the scientific community that exposure to even low doses of certain chemicals can harm human health. Sometimes the epigenetic impacts of chemicals are isolated to an individual; but sometimes they are trans-generational.
We need new legislation to strengthen the TSCA. As the NRDC has argued, such reform should aim to do the following: (1) require new and existing chemicals to be assessed for safety with mandatory and enforceable deadlines; (2) establish safety standards for chemicals to protect children and other vulnerable groups; (3) ensure the public’s right to know about the safety and use of chemicals; (4) give the EPA the authority to protect the public from unsafe chemicals, including expedited action for the most dangerous chemicals; and (5) allow states to maintain laws which exceed federal protections to safeguard their citizens.
Trying to craft legislative wording to everyone’s satisfaction is impossible. But when it comes to protecting public health, there is only one interest that matters: the publics. After nearly 39 years of failed policy, it’s time to give the EPA the authority to protect us from toxic chemicals.