Strange brew: How chemical reform legislation falls short

Policy Matters

Strange brew: How chemical reform legislation falls short

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Delving into the nitty-gritty of the EPA’s updated authority to test potentially dangerous chemicals.

It’s taken a very long time — 40 years, in fact — but a major federal law is finally getting a makeover.

The Toxic Substances Control Act (TSCA), the national law designed to regulate potentially toxic chemicals, hasn’t been updated since 1976, and there’s wide agreement that the law is inadequate to keeping consumers safe. Now, after years of back and forth, both the House and Senate have finally passed a compromise bill, which the President is expected to sign by the end of the month.

So is this bill the right way to address our broken chemical regulatory system? Let’s break it down.

The good...

One major reform is fixing the EPA’s authority to test potentially dangerous chemicals. This is important since, contrary to popular opinion, the vast majority of chemicals in the market have never been tested.

In fact, of the approximately 80,000 chemicals currently in use, 62,000 were on the market when TSCA was passed in 1976, and so were "grandfathered" in. Of the remaining 18,000 or so, the EPA has only been able to mandate testing on 200 of them. Under existing law, the EPA simply doesn’t have the authority to set safety standards or obtain sufficient information from manufacturers.

This is a disaster waiting to happen: Companies that produce chemicals, or use them as production inputs, risk major losses if health hazards surface later (think fiberglass and asbestos). That can bankrupt companies and destroy entire industries. Making matters worse, companies that do have the know-how to produce safer alternatives have difficulty building a market against more dangerous competitors whose risks have not been disclosed.

This reform bill would help responsible companies by requiring the EPA to evaluate the potential risks of chemicals in commerce, giving it more ability to test new and existing chemicals, and prevent new chemicals from entering the marketplace until they have been found to be safe. This is, without question, an improvement over the existing TSCA law.

...With the bad?

One major weakness in the reform bill is how slow the process would work. The EPA is required to initiate testing on only 30 of those chemicals in the first five years after the law is passed. Half of those would be chemicals on the agency’s “work plan,” a master list of the known worst chemicals.

That’s a good place to start, but the process is too slow. A full review that results in a final determination could take up to seven years, and for most of that time, states would not be allowed to take be restricted from taking faster action (more on that later). Congress missed the opportunity to put in place a more robust testing schedule that would have improved safety more quickly.

Another weakness in this reform bill is that, due to what’s known as Confidential Business Information (CBI), proprietary chemical formulations are information considered trade secret.

Under the current system, a company has wide latitude to claim CBI and avoid sharing data that would reveal a product’s potential safety profile. This tactic limits the amount of information the EPA — as well as manufacturers and consumers — can get to assess safety.

The new bill, meanwhile, requires companies to re-substantiate previous claims that their formulations deserve CBI status. If they do, the information becomes available to the EPA and certain health professionals.

Giving the EPA more data on the safety of certain chemicals is a step in the right direction, but that data must also be made widely available throughout the supply chain — especially to consumers. This legislation does not meet that need.

Worse yet, the bill actually will slow the testing process for chemicals at the state level. States that wanted to move faster on regulating potentially toxic chemicals will have to wait up to three years while the EPA completes its review. States could pursue a waiver if they have a compelling reason, but some opponents are claiming the waiver process is too complicated. Existing state regulations would remain in place, but future efforts will be considerably restrained.

One step forward, two steps back?

The good things in this reform bill are significant. Giving the EPA the authority to actually test more chemicals that could be dangerous is an essential improvement that addresses a major flaw of the original law. And yes, any congressional action is going to require some compromises for a bill to become law.

The problem is that some of those compromises, such as slowing the pace of the EPA’s reviews, or prohibiting states from regulating toxic chemicals while the EPA is looking into them, seriously weaken the bill’s effectiveness.

Real reform needs to include three main principles: transparency; safety; and innovation. While this bill offers some good things by letting consumers know what’s in some of the products they use, and protecting them from the worst chemicals, it simply doesn’t go far enough. And that means truly innovative companies will still have to sell against more dangerous competitors, even if the EPA now has some teeth to go after them.

This reform bill’s mixed reviews explain why many businesses, including Earth Friendly Products, Seventh Generation, Naturepedic and the Honest Company — all members of the Companies for Safer Chemicals Coalition — had very mixed feelings about this bill. While they all recognized the positive things this legislation would accomplish, they were also very disappointed that it didn’t go further, and would slow the progress states were making on chemical reform.

Compromise is basic to our type of government, and it’s unusual for one side to get everything it wants, so the fact that this bill has flaws should be no surprise. In this bill, however, the positive changes are seriously outweighed by the missed opportunities. The 40-year stalemate on reform has been broken, but the fight to create truly sustainable chemical policy must continue.