Putting the ‘Teeth’ into TSCA: A Tale of Two Bills

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TSCA, the Toxic Substances Control Act, is meant to do as its name suggests – control the introduction of potentially toxic chemicals into personal care products and the environment. The law, introduced in 1976, has been left untouched for decades. The chemical market now contains over 85,000 chemicals, with about 1,000 new chemicals introduced every year – and TSCA’s rules have only resulted in bans on five of these substances. ‘TSCA has no teeth’ is a common refrain among environmentalists, and speaks to the Act’s general incompetence in protecting human and environmental health.

How does TSCA work, and what makes it so ineffective? Essentially, TSCA requires that the EPA maintain a list – the TSCA Inventory – of all chemical substances that are manufactured or processed in the U.S.  Though companies must let the EPA know they are starting to manufacture a chemical, they have no responsibility to provide safety data along with this notice. The EPA can only require testing once they have proven the chemical presents a “potential risk,” creating a massive loophole for untested but potentially hazardous chemicals to enter the market. Not only are new chemicals subject to no scrutiny, but in-use chemicals are given the benefit of the doubt. When TSCA was first introduced, it “grandfathered in” all existing chemicals with the assumption they were safe for use. It’s readily apparent that there are more loopholes than law in TSCA.

Luckily, TSCA reform is back on the table, with the introduction of two new chemical regulation bills to Congress just last week. On March 10, Senators David Vitter and Tom Udall introduced a new bill that builds incrementally on a previous reform attempt, the Chemical Safety Improvement Act. Though the Udall-Vitter bill gives the EPA more power to regulate and requires safety testing of current and new chemicals, it has drawn criticism from environmental groups. The coalition Safer Chemicals, Healthy Families released a letter critiquing the bill’s classification system for chemicals, which groups them as “High Priority” or “Low Priority” after an initial review. Chemicals deemed High Priority will be subject to further testing to determine their safety, while Low Priority chemicals will not, a distinction that may open a so-called ‘Low Priority Loophole’ with the potential for abuse by industry. Additionally, the bill curtails the ability of states to set their own more stringent regulations, a fact many environmental groups have criticized.

Senators Barbara Boxer and Ed Markey introduced their own bill, the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act, on Thursday. Named after two cancer survivors, the bill employs stricter standards for chemical safety evaluation, sets deadlines for determining safety, and also allows states to continue to employ stricter regulations than those at the federal level. The Environmental Working Group has praised the bill, including its changes to safety-standard language. Instead of requiring EPA to prove a chemical has “no unreasonable risk of harm,” the bill sets the standard as “reasonable certainty of no harm” – the same standard that is applied to food additives and pesticides. The bill requires that the EPA consider risks that might result from unintended chemical spills, not just intended exposure levels. It also fast-tracks the safety analysis of asbestos, a proven cancer-causing agent that TSCA has thus far failed to regulate.

The Boxer-Markey bill shifts the burden of proof for chemical safety determination in a significant way. Rather than requiring proof of a chemical’s ‘unreasonable’ harm before regulation, it requires ‘reasonable’ certainty of its safety. Of course, there are still nuances and uncertainties in the determination of what constitutes “reasonable” safety, just as “unreasonable” harm is a flexible concept. All things considered, the Boxer-Markey bill takes the furthest step toward precaution that we have yet seen in Congress.

May the best bill win!

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By Leanna Theam. I grew up in the suburbs of sunny Southern California then moved to the opposite end of California to a small college