Better Living Through Chemistry?

Industrial chemicals are big—no, huge—business. About 80,000 of these chemicals can be used in goods, everything from toys to building materials. Of those, the U.S. Environmental Protection Agency has banned only five—that’s right: FIVE.

This is largely because the Toxic Substances Control Act, passed by Congress almost 40 years ago, is ineffective.

Over the decades, lawmakers have tried in vain to revise TSCA, only to be shot down by politicians and the influence of industry. With two reform bills in the works, one in the Senate and another in the House, this year may present the closest chance yet at changing the law. The Senate bill—written by Tom Udall, a Democrat from New Mexico, and David Vitter, a Republican from Louisiana—currently has one-third of the chamber as cosponsors, and debate on it could begin as early as June. Unfortunately, environmentalists and public-health advocates question whether either bill, in their current forms, would be enough to protect the public from harmful chemicals.

In the absence of progress on the federal front, states have tried to fill the void. In California in 2010, for example, legislators restricted cancer-causing plasticizers called phthalates, leading manufacturers to remove them from products. More state laws could follow, and because it’s easier to comply with one federal rule instead of as many as 50 different ones, the chemical industry would prefer that Congress act.

But most environmental groups see the proposed laws as too industry-friendly. The proposals in both draft bills are still open to interpretation, but here’s a quick run down of a few pros and cons.

A couple good things about the Senate proposal:

• It would restrict substances based on health impacts, not economics. Right now, if the EPA proposes a limit on a certain chemical, the agency must conduct a cost-benefit analysis of the restriction. The Senate bill would change how that analysis would factor into the ultimate regulation.
• The new bill eliminates a mandate that the EPA prove that curbing a chemical’s use is the “least burdensome” option. That current requirement is largely why the agency’s decision to outlaw the carcinogen asbestos in 1991 didn’t withstand a court challenge: It put too much of an economic burden on the industry. “The idea was, if this can’t work for asbestos, which was the substance with the clearest links between its use and devastating human health impacts, then it can’t really be used for anything,” says Andy Igrejas from Safer Chemicals Healthy Families, a coalition of advocacy groups. “The EPA really threw up its hands and didn’t try to regulate existing chemicals that much after that.”

And where there is room for improvement:

• The new bill would give the EPA the sole authority (over states) to impose restrictions once the agency starts to review a substance, a process that can take up to five years. This would preempt state actions unless they were able to get a waiver (which could be hard to come by). If a state decides to put limits on a substance, it has to ask the EPA if it wants to conduct a review first. As Igrejas says, “Why take dogs out of the hunt when we have such a big problem?”
• A provision in the bill would make it more difficult for the EPA to force companies to notify the agency of new uses of a chemical of concern in their products.

“On balance, we think that it’s still not a bill that merits support,” says Daniel Rosenberg, an attorney for NRDC (disclosure). Now, onto the legislation making its way through the House.

A couple goodies:

• The current version of the House bill doesn’t impede the state’s ability to restrict substances (until, that is, the EPA gives a chemical the OK or a nay, after conducting a full review). If the EPA puts a limit on a chemical, the states can co-enforce it.
• The EPA will have to assess existing industrial chemicals to see if they persist and accumulate in the environment. If they do, those chemicals will be put on a fast track for reduction (unless industry fights it). Then it goes into the pipeline for regular review. (Both the House and Senate provisions handle persistent and bioaccumulative and toxic chemicals in good and not-so-good ways.).

And some points that still need tweaking (or axing):

• The proposal swaps the EPA’s current cost-benefit analysis (remember how that affected asbestos regulation?) for a "cost-effective" requirement. What that actually means, however, is unclear and, well, concerning.
• This one’s a doozy. The industry gets to require the EPA to assess certain substances. This could result in the industry sending review requests for lots of innocuous chemicals in an attempt to slow down the regulatory process. (The EPA gets a say in which ones it looks at, too, but there’s no cap on the number of industry requests.)

Other positives and negatives of each piece of legislation exist, of course, and future changes are expected as lawmakers revise and amend the bills. American consumers have waited four decades for this reform, all the while consuming products that just might harm them or their families. Here’s hoping Congress can figure out the right formula (and soon) for making TSCA’s active ingredients work.

*This story has been updated and corrected throughout, since its original publication on 5/20/15.