As I've noted previously, our bedrock law for the regulation of toxic chemicals -- the Toxics Substance Control Act -- is all but dead. In fact, the law is widely regarded as the greatest failure among the major environmental laws passed in the 1970s.
The law puts the burden of proof on EPA to demonstrate that a chemical poses an unreasonable risk to public heath or the environment before any measures to restrict the chemical can be taken. That's even the case before the EPA can force a company to conduct additional tests.
The burdens of proof make meaningful use of the law almost impossible. As a result, of the approximately 62,000 chemicals being produced or sold at the time of the law's passage in 1976, EPA has used its authority to require testing for fewer than 200. In the 32 years since the law's adoption, only eight chemicals -- or classes of chemicals -- have been banned for any uses such as PCBs.
To fix the system, Congress must:
- Streamline the EPA's authority to obtain health and safety data.
- Require additional testing for chemicals from companies.
- Shift the burden of proof from government to industry to prove that a chemical is safe before it is approved for use (or to continue being used if it's already on the market.)
- Increase use of biomonitoring to guide testing priorities.
- Make the process more transparent and make more information available to the public.
While new legislation will be the cornerstone to toxic chemical reform, the devil of decision-making is in the details, which are developed and articulated in the administrative branch of government.
Therefore, there are a many important opportunities to set priorities and promote streamlined decision-making and more precautionary approaches in chemical evaluation in the administrative agencies, even while waiting for a new legislative mandate.
In particular, there are two key targets of opportunity for the Obama Administration to undertake in 2009:
1) Work to reverse harmful chemical policies and rules adopted under the Bush administration, such as the heavy-handed Office of Management and Budget (OMB) review.
2) Provide federal agencies with up-to-date scientific evidence that promotes the most modern and sound approaches to analyzing the hazard and risks of chemicals.
NRDC's Health Program has developed a list of more than 50 steps that EPA, FDA, and other agencies must take in the first months of the new Administration to reverse years of neglect in chemicals management and other related matters.
More tomorrow on what the Obama Administration can and should immediately do to help make the American public safe from toxic chemicals.