TSCA Reform: Is It Enough?

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On Tuesday in a vote of 403-12 the U.S. House of Representatives passed a bill to update the Toxic Substances Control Act of 1976 (TSCA). The Frank R. Lautenberg Chemical Safety for the 21st Century Act, named after a former democratic senator from New Jersey who dedicated much of his life to TSCA reform, is a “compromise bill” designed to appease industry and environmental groups alike. The bill is also a compromise between the House and the Senate who came up with separate TSCA reform bills and were forced to combine them. The Senate’s vote is still pending, and will likely happen in the next few weeks. White House correspondents have said President Obama supports the bill and will sign it into law pending its passing in the Senate.
The original TSCA was meant as a way for EPA to evaluate the toxicity of chemicals and regulate them if they posed a threat to human or environmental health. However, TSCA is full of holes and red tape that have actually made it more difficult for EPA to regulate chemicals. The 1976 TSCA does not require industry to get safety approval before beginning the sale of a product and only allows EPA a certain amount of time to evaluate the product. Additionally, a counterintuitive measure of TSCA required EPA to provide proof of potential harm for a chemical before beginning to evaluate the harmfulness of the chemical. Worst of all, the original TSCA legislation required the EPA to consider the cost of enforcing regulations when evaluating chemicals. These restrictions meant that EPA could not or did not take sufficient regulatory action, and when it did, courts used TSCA to overturn their rules (including the asbestos regulations). Consequently, only about 200 chemicals have been evaluated since TSCA first passed, while the New York Times estimates about 64,000 chemicals are currently left unregulated.
The current TSCA reform bill aims to address the problems in the 1976 law. It requires EPA to test chemicals regularly, working on 20 chemical reviews at one time. It also ensures that EPA focus on chemicals that are more likely to harm vulnerable populations (children, workers, pregnant women, low income communities) and chemicals that could easily pollute drinking water. EPA will evaluate what it perceives as the most dangerous chemicals first, but industry can pay to have their chemicals evaluated out of order (useful if they want to begin selling new products). Industry will also contribute $25 million total each year to help fund the EPA evaluations. The rest of the funding will come from federal allocation of the budget. Finally, the TSCA reform bill also includes a requirement to find ways to reduce animal testing and a requirement to evaluate chemicals linked to cancer clusters (see Trevor’s Law).
However, despite the numerous improvements to TSCA, the reform bill is also somewhat problematic. The section that most concerns environmental activists and other critics explains that EPA regulations will preempt those set by states. While any state regulations enacted on or before April 22 will be upheld, EPA regulations will apply to chemicals evaluated after April 22nd. Proponents of the bill argue that this section addresses the patchwork of enforcement by state and that it will improve interstate commerce. However, this could mean that states with traditionally strict chemical safety measures like California could see their regulations watered down. States are permitted to request waivers from EPA, but EPA takes full responsibility for the nationwide evaluation of chemicals, even blocking states from continuing to evaluate chemicals the EPA is researching. This statute gives EPA an enormous amount of power, even allowing EPA to control our exposure levels. Even now EPA allows for higher exposure levels of some chemicals than do states. Are we sure we’re ready to trust them so completely? Federal safeguards such as those preventing chemical exposure should be a minimum, not a maximum. Or as Senator Bernie Sanders (D-VT) said when asked about the bill, “[F]ederal chemical regulations should be a floor, not a ceiling.” EPA should set the standards, but states should be free to make them more stringent in order to better protect the health of their residents.

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