Tuesday night, the House passed legislation aimed at reforming the Toxic Substance Control Act (TSCA), the 1976 law that for almost 40 years has dictated how chemicals are managed in the United States. Passed with broad bipartisan support — with the only no vote coming from Rep. Tom McClintock (R-CA) — the bill is a first step toward reforming TSCA, largely considered one of the most ineffective environmental laws in the country.
“Eighty-five thousand chemicals have been introduced into commerce in the United States, and what we know is that less than 1,000 have been well-tested for their human health and environmental effects,” Noah Sachs, professor of law at the University of Richmond and a scholar at the Center for Progressive Reform in Washington, D.C., told ThinkProgress. “I think there’s an assumption that the government must be watching out for these things, and if there were a dangerous chemical out there the government would remove it, but that’s not what is happening at all.”
Advocates for chemical regulation reform point to several shortcomings in the existing TSCA statute. When the TSCA passed in 1976, some 64,000 chemicals that were currently in use were exempted from testing — since then, another 22,000 have been evaluated, but few have been designated as toxic. Crude MCHM, the chemical that spilled into West Virginia’s Elk River in January 2014, for instance, is unregulated. Between 1976 and 2007, the Environmental Protection Agency generated data on just 200 chemicals.
While TSCA gave the EPA the authority to review chemicals, it never provided the agency with a mandate on how it should go about doing it. Instead, it required high burdens of proof for deeming a chemical toxic, calling for its removal, or restricting its use. Under the current TSCA, any time the EPA wants to regulate a chemical, it has to provide a cost-benefit analysis showing that the agency’s alternative chemical is the least burdensome in terms of environmental and health impacts and cost. It has to provide that analysis not just for the proposed alternative, but for every other potential alternative as well.
I think there’s an assumption that … if there were a dangerous chemical out there the government would remove it, but that’s not what is happening at all
Asbestos — which is classified as a known human carcinogen and is banned in over 40 countries — is still legal in the United States due to the high burden of evidence required of the EPA under TSCA. In 1991, the Fifth Circuit found that the EPA, in trying to ban the substance, had failed to provide substantial evidence that a ban was the “least burdensome alternative” as required by TSCA, and rejected the EPA’s cost-benefit analysis. Since 1991, the EPA has not attempted to regulate an existing chemical.
The House bill removes the requirement that the EPA find the least burdensome alternative, and for the first time includes a mandate that the EPA begin testing chemicals for their safety, requiring that the EPA test 10 chemicals per year.
But some environmentalists worried that the bill still doesn’t go far enough in regulating dangerous substances.
“We commend the House for its focus on the need to overhaul chemical policy, but this piece of legislation will not do the job,” Ken Cook, president of the Environmental Working Group, said in a press statement. “It tips much too far in favor of an industry in serious need of regulation.”
Though the House bill removes the requirement that the EPA provide evidence of a less burdensome alternative — placing more emphasis on scientific evidence during safety assessments — it still requires the agency to “determine whether technically and economically feasible alternatives that benefit health or the environment…will be reasonably available as a substitute when the proposed prohibition or other restriction takes effect.”
It also requires that the EPA show proof of a chemical’s potential risk before testing can even begin, forcing the agency to amass a record of a chemical’s potential impacts before it can order more testing.
“I don’t see why that should be the agency’s task,” Sachs said. “I think it’s putting yet another procedural hurdle in the place of removing dangerous chemicals from the market.”
The House bill also allows chemical companies to request that the EPA test a given chemical — a provision that environmentalists worry will allow industry to dictate the EPA’s agenda.
“It’s a nice way for industry to drive the testing priorities,” Sachs said. “It’s pretty extraordinary that this bill allows industry to set the testing agenda for a government agency.”
The American Chemistry Council — the main trade association for the American chemical industry — was quick to praise the bill’s passage, calling it “a pivotal moment in the years-long effort to reform TSCA.”
Whatever gets passed may be with us for another generation
The Senate is expected to vote on a similar bill before the August recess. That bill is largely considered to be more comprehensive than the House version, as it creates standards for labeling chemicals as either high or low priority for testing. But the bill — which only requires the testing of 25 chemicals over five years and strips states of their right to create their own chemical regulations — has also been criticized by environmentalists and public health officials, who claim that industry interests played too large a role in its drafting.
In March, Hearst Newspapers obtained a copy of a final draft of the bill, before it was seen by a Senate subcommittee. The draft was written in the form of a Microsoft Word Document, and by checking the documents “advanced properties” in Word, the document’s company of origin turned out to be the American Chemistry Council.
“It was clear from the computer coding that the final draft originated at the American Chemical Council itself,” Sen. Barbara Boxer (D-CA) said the day before the Senate Environmental and Public Works Committee began discussing the bill. “Maybe I’m old fashioned, but I do not believe that a regulated industry should be so intimately involved in writing a bill that regulates them.”
After the House passed its bill on Tuesday, however, Boxer expressed hope that the Senate could pass an amended version of the bill.
“While the House bill could still be improved, I feel it is the appropriate bill to take up in the United States Senate where we can work on just a few amendments to make it better,” she said in a statement.
Sachs, however, hopes that Congress build upon existing momentum to create a reform bill that addresses the gaps in current TSCA.
“Whatever gets passed may be with us for another generation,” he said. “I would like to see a much more aggressive statute, and after 40 years of working under this very weak law of TSCA, I think Congress can do a lot better to pass something more ambitious.”