The last time I posted was just before Earth Day, as Congressional leaders prepared to introduce legislation to transform the way our country regulates toxic chemicals by reforming the Toxic Substances Control Act (TSCA). Now the legislation is here, and there is no better time than the present for Congress to dig in and correct the mistakes that were made in the original legislation more than 30 years ago. On April 15th, Senator Lautenberg introduced the Safe Chemicals Act (S. 3209) and Reps. Rush and Waxman introduced a discussion draft of their legislation, the Toxic Chemicals Safety Act. Although the bills are not identical, they both either contain, or with some relatively simple changes could contain, all of the essential elements necessary to ensure TSCA reform is meaningful and effective in the short term and longterm.
With five months to go until a national election, might it not benefit just about everyone to get serious about taking time this summer to tackle TSCA reform?
Yesterday, the Washington Post featured a story titled, “Voters support for members of Congress is at an all-time low, poll finds.” The dissatisfaction seems to cut pretty strongly across party lines: people seem fed up that Congress isn’t solving any of the problems people care about. This is certainly true of chemical policy. Polling commissioned by the Safer Chemicals Healthy Families campaign, of which NRDC is a member, indicates that the public is very concerned about exposure to unsafe chemicals and their potential connection to the rise in rates of certain kinds of cancer, as well as other chronic illnesses and disabilities. And people, across party lines, want strong laws in place to protect the public.
With this in mind, I sketch out here some of the key elements that are included in both bills, and a few important aspects that need some improvement.
Burden of proof. One of the most fundamental changes needed to TSCA which is embodied in both bills, is to shift the burden of proof from EPA to the chemical industry to prove that a chemical is safe to remain on the market. Currently, the burden of proof is on EPA to prove that a chemical is unsafe before it can take action to protect the public, rather than the burden being on industry to prove that a chemical is safe in order to let it remain on the market (or get on the market in the first place).
Safety standard for all chemicals. Reform legislation will also require all chemicals to meet a safety standard. As incredible as it may seem, when TSCA was enacted in 1976, the law “grandfathered” the 62,000 chemicals then available for use in Commerce, without requiring that a basic set of information be disclosed about those chemicals, that they be tested, or that they meet a safety standard. Since then another 22,000 chemicals have entered the market, also without sufficient information, testing, or a requirement to meet a health-protective safety standard.
Under the Senate and House bills, the safety standard that will be applied to chemicals will consider aggregate exposure to the chemical (meaning exposure from all the different potential sources) as well as cumulative exposure to other chemicals that can have the same health effects; and will be set to protect vulnerable sub-populations, including children, the elderly, workers and others.
A separate provision would require EPA to identify and develop clean-up plans for those communities found to be disproportionately exposed to toxic chemicals.
Enhance our right to know what’s in products. Another critical piece of TSCA reform is to ensure that the public, EPA, the states, downstream users of chemicals (and retailers who sell products containing chemicals) have more information about chemical substances in commerce, including information about their potential health and environmental effects as well as their uses, and likely sources of human exposure. This need is reflected in several parts of the TSCA reform bills, including the requirement that the chemical industry provide a minimum set of information (referred to as a “minimum data set”) with which to evaluate the safety of chemicals; and the new controls proposed on the ability of companies to claim information about their chemicals as “confidential business information” and therefore successfully shield it from public scrutiny. The bills need additional detail both to ensure the right information is included as part of the minimum data set, and that the information is made available for all chemicals within a reasonable period of time.
Give EPA the ability to effectively implement the law. Finally, in a host of ways, the bills propose changes to streamline EPA’s authority to take action – to require testing or obtain other information from companies about chemicals, to address imminent hazards – removing the barriers that have so significantly hindered EPA from implementing the law for decades.
Some areas that need improvement:
In addition to needing to reform TSCA to address the tens of thousands of chemicals for which we don’t currently have sufficient information to assess their safety, there are also at least dozens of chemicals for which we do have enough information to know that they are unsafe, and human exposure should be reduced or eliminated to the greatest extent possible. These include chemicals that have been identified as persistent, bioaccumulative, and toxic (such as mercury, lead and cadmium) and other substances associated with health effects like cancer, reproductive harm, and learning and developmental disabilities and for which there is evidence of widespread exposure including formaldehyde, asbestos, TCE, bisphenol A, phthalates and other substances. For these chemicals, EPA should be required to take expedited action to protect the public. Both bills acknowledge the notion that there are some chemicals (or types of chemicals) for which expedited action is warranted without getting bogged down in years of additional delay, but their current provisions lack sufficient detail to get the job done properly.
Fully embrace National Academies of Science recommendations for assessing health risks. As noted above in establishing a safety standard for evaluating chemicals, both bills require consideration of cumulative exposure to chemicals with a potentially similar health effect. This is one of several recommendations made recently by National Academies of Science (NAS) in two separate reports (which you can find here and here) requested by EPA for guidance on how the agency can (and should) improve its methods for assessing the risk posed by chemicals. TSCA reform legislation should ensure that the full set of NAS recommendations are incorporated into EPA’s chemical assessment efforts. Currently, the bills lack the specificity necessary to ensure that will happen.
Require new chemicals to meet the safety standard—before going on the market. As drafted, both bills appear to allow new chemicals onto the market without their having to be proven safe, or safer than the chemical they would be replacing for a specific use, or of such critical use that they merit market entry even without meeting the safety standard. Absent sufficient assurances that new chemicals entering the market are safe, we run the risk of perpetuating the problems of the current TSCA, in which chemicals that can cause harm to health or the environment are widely dispersed in commerce, making it much more difficult and expensive to “take it back” if they are found to cause problems later.
Make deadlines enforceable. Finally, the bills currently lack any meaningful consequence if EPA fails to complete a safety determination of a chemical within the time set by the legislation. Of course, without any meaningful consequence for EPA failing to meet a deadline to assess a chemical, it is more likely that deadlines will be missed, for a number of potential reasons, and the result will be that chemicals that may not be safe will be allowed to remain on the market without adequate restrictions to protect the public. For TSCA reform to work the legislation needs to have a sufficient “hammer” to ensure that EPA gets the job done, even if it means making tough calls that require some restriction on the use of chemicals in the face of industry opposition.
Although the bills need additional strengthening changes as they move through the legislative process; that is no mark against their sponsors. TSCA is a complex law, and rewriting something that has accomplished so little in more than three decades, but is also far-reaching in scope and critically important in its implications for public health is a daunting undertaking. That’s part of the reason so few politicians have been willing to take on the challenge, and Senator Lautenberg and Reps Rush and Waxman are to be commended for stepping up to the plate. The effort to move (and improve) these bills; through Congress and to the President’s desk is going to generate a lot of well-funded opposition from the usual suspects: the chemical lobby, the oil lobby, anti-regulation ideologues and “think tanks.”
But the truth is that all of those special interests are out of touch with the public’s strong desire for action to help reverse the rising rates of chronic illness and provide protection from unsafe chemicals. This summer is the perfect time for Congress to demonstrate that it is cognizant of the public's concerns, and that it is capable of taking action to fix a system that has been broken for years.