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Toxic Substances Control Act: Ready for Reform

By Kimberly Dean

Tuesday, May 26, 2015

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The recent bipartisan activity in the House and Senate on improving the Toxic Substances Control Act (TSCA) has shone a light on the ability of Republicans, Democrats and various stakeholders to come together to reform an outdated statute. The Senate bill, the Lautenberg Chemical Safety Act, has 40 bipartisan co-sponsors evenly split between Democrats and Republicans and is making its way to the Senate floor. Earlier this month, the House Energy and Commerce Environment and Economy Subcommittee unanimously (21-0) reported out the TSCA Modernization Act, which will now go before the full committee for consideration.

The bipartisan efforts are key to ensuring that the federal chemical regulatory system is updated for the modern era. The need for such reform is great. TSCA is an antiquated law that no longer provides adequate protection. In the nearly 40 years since enactment, Congress has never amended the basic provisions of the law and instead has only passed limited, narrow amendments.

The momentum this year is due not just to the proactive efforts of these members and public health and environmental advocacy groups, but also to the removal of a previous legislative hurdle. After years of opposing TSCA reform, many in the industry are now willing to accept more federal regulation. Currently, each state has significant control over the use of toxic substances within its borders, and many state governments have tried to address some of TSCA’s failings by enacting stricter laws. The existence of a myriad of state laws has created an ever-changing patchwork of different state-level regulations that the chemical industry must follow. Businesses need greater certainty and predictability for planning. They also want to restore consumer confidence in their products. These challenges have meant that much of the industry opposition to increasing the Environmental Protection Agency’s (EPA) ability to regulate toxic substances has decreased over the past few years.

TSCA covers most chemicals used in industry and in commercial and consumer products, though it does not include uses in cosmetics, drugs, and food and food packaging regulated by the Food and Drug Administration, or uses in pesticides covered by the EPA under the Federal Insecticide, Fungicide, and Rodenticide Act. Despite this broad mandate, the EPA’s authority under TSCA is lacking. The Lautenberg Act, which passed the Senate Environment and Public Works Committee, would enable the EPA to take common sense actions and have the basic authorities that many Americans assume it already does. A few key examples are the authority to review the safety of all chemicals in commerce, requiring a safety finding before a new chemical can enter the market, and the requirement to protect infants and pregnant women from harmful chemicals.

There are a variety of public health and environmental loopholes in the current TSCA law. One significant loophole is that a very small fraction of chemicals in use in U.S. commerce have ever been reviewed for safety. This is partially due to a testing xatch-22. In order to require testing, the EPA must first make certain risk or exposure findings. The main criteria are: the chemical may present an unreasonable risk of injury to health or the environment; the chemical is produced in substantial quantities; or, there is or may be significant or substantial human exposure. However, making and demonstrating such risk or exposure findings is difficult without the data that testing would provide.

The current default position for existing chemicals is that with no or uncertain information, there is no action. In the past four decades, the EPA has required testing on fewer than 300 of the 62,000 chemicals that were grandfathered in when TSCA was enacted. The EPA imposes some type of testing requirement on roughly 4% of the Premanufacture Notices (PMNs) it reviews. While not all chemicals enter the marketplace after a PMN, the EPA has reviewed nearly 40,000 PMNs since TSCA was enacted; therefore, only about 2,000 new chemicals have been tested.

Further, if the EPA does find there is an unreasonable risk, TSCA mandates that the EPA apply the least burdensome means of adequately protecting against the unreasonable risk. In developing a rule, the EPA is directed to consider health and environmental effects, the usage of the substance, and the reasonably ascertainable economic consequences of the rule, including its effect on the national economy. This safety standard is overly burdensome, and has resulted in very few chemicals actually being regulated. The Lautenberg Act replaces this overly burdensome standard with a health-based standard.

Moreover, a court decision gutted TSCA’s ability to protect Americans from asbestos. In 1989, the EPA issued a final rule under TSCA that banned most asbestos-containing products. In 1991, the Fifth Circuit Court of Appeals vacated and remanded the rule. This court decision effectively overturned most of the original ban on the manufacture, importation, processing, or distribution in commerce of many asbestos-containing products originally covered by that rule. This also set the precedent that the EPA could not ban asbestos.

Lawmakers will continue TSCA reform negotiations to find common ground. If bipartisan cooperation prevails, further progress on much-needed improvements to bring TSCA into the 21st century can be made. Both the House and Senate TSCA bills are steps in the right direction.

The Bipartisan Policy Center believes that the current TSCA laws need to be updated. We will provide further commentary on this process in additional posts over the coming weeks.