Chemical imbalance: Toxic controls legislation doesn't go far enough

Policy Matters

Chemical imbalance: Toxic controls legislation doesn't go far enough

Today, March 18, Congress is planning to take up legislation that would reform a huge part of our economy. It’s something that doesn’t get the same kind of attention as, say, tax reform, but it’s potentially just as important: Reforming our chemical safety laws.

 A lot has changed since the Toxic Substances Control Act (TSCA) was signed into law in 1976, but TSCA itself isn’t one of them – it hasn’t been updated once during that time. To say it is in desperate need of reform would be an understatement.

 TSCA was supposed to give the Environmental Protection Agency (EPA) power to thoroughly regulate common chemicals. In practice, that hasn’t happened. Out of 80,000 chemicals currently produced, 62,000 were never tested under TSCA; they were already on the market in 1976 and so got grandfathered in. The EPA has only been able to mandate testing on 200 chemicals because it lacks power to set safety standards and obtain sufficient information from manufacturers.

Efforts to reform the law over the past few years have mostly failed to gain traction — not for lack of trying, but because of a lack of agreement on how strong the new regulations should be. However, a new reform bill was recently introduced in Congress by Sens. Tom Udall (D-NM) and David Vitter (R-LA), based on legislation introduced in previous Congresses.

Reforming a law that hasn’t been updated since the 1970s sounds like a good deal, and done right, it would be. Unfortunately, this bill does not do enough to protect the public and downstream businesses, nor does it do enough to deliver incentives to innovative entrepreneurs.


Why TSCA Matters


Companies that produce chemicals, or use them to make products, can be at financial risk if those chemicals prove to be health hazards years later. Some discoveries of toxic properties in widely used products, like the findings about exposure to asbestos, can bankrupt companies and destroy entire industries — or change them.

Bisphenol A , or BPA, is an example of a chemical that caused major market disruption when its hazardous nature was discovered. BPA had been used in the manufacture of many plastic products, including many used by children. When its toxic properties were discovered, consumers shunned many products, which in turn threatened manufacturing and even jobs. And while the industry responded, it’s not clear that the bpa-free alternative they’re using is any safer.

Meanwhile, companies that try to do the right thing and produce better, safer alternatives are competing in an unfair market because the hazards of existing chemicals are not always fully measured and disclosed. That’s why individual companies and business organizations have joined the Companies for Safer Chemicals coalition to advocate for comprehensive chemical reform.

 While another bill, introduced by Senators Barbara Boxer (D-CA) and Ed Markey (D-MA), would do better at meeting the coalition’s principles, the Vitter-Udall bill is getting more attention —  likely because of its bipartisan sponsors. Considering the legislation on the merits, that’s a problem.


Putting Chemicals On Notice


The Vitter-Udall bill would require the EPA to prioritize chemicals for review and designate some each year as high-risk. It is a tepid schedule: 10 per year for the first year, 10 more in the third year, and 5 in the fifth year after the bill’s enactment. While it’s good to see a floor rather than a ceiling, it’s a practical reality that the floor is in fact a ceiling. Rarely has the agency shown the ability or had the resources to do more than was required by law.

 What makes this pace look even more glacial is what happens after the first 25 chemicals have been set for review. EPA can only begin the review process for a new chemical when one of the initial group has gone through the entire review process. We need far more action with a more aggressive schedule than that, considering how many chemicals haven’t yet been tested in the years since TSCA was passed.


The Impact on State Policy


As far as states are concerned, any chemical regulations they’ve implemented up to January 1, 2015 would be grandfathered in which is good. California’s Prop 65 gets a special mention for demonstrating leadership in the absence of federal action on regulating chemicals. It’s what states want to do after the federal legislation's passage that could be worrisome.

 Once EPA places a chemical on the high-priority list, states would not be able to regulate it if the state's regulation would address a use within the scope of the EPA's risk assessment. This is in place until a final determination is made, which takes from 5 to7 years. So in that time span, no one has authority to manage a likely toxic chemical. This is called the regulatory gap.


Impacting Innovation


The goal of reform should be to get the worst chemicals out of commerce and replace them in the marketplace with safer alternatives. The impact strong chemical reform could have on innovation is potentially massive. Removing chemicals from commerce, or signaling there’s a likelihood they will be removed, is a market signal to innovators and investors that there will be opportunities and markets for safer alternatives. It tells them that they can focus time and resources on developing a new alternative to existing chemicals, and gives them the chance to see a reward on that investment.

 While TSCA is long overdue for reform, any update needs to be done the right way.

 Thousands of companies have already agreed that effective chemical policy must ensure that consumers are protected, safety information on commonly-used chemicals is widely available, innovators are given the chance to compete on a level playing field, and states have the chance to move faster if the federal government lags again. The Vitter-Udall bill still has a long way to go to represent the kind of reform American businesses and consumers want to see.