by CPR Member Scholar Noah Sachs and CPR Senior Policy Analyst Matthew Shudtz
Despite 40 years of regulatory effort, chemical regulation in the United States has been a dismal failure,and our current law – the Toxic Substances Control Act (TSCA) – deserves much of the blame for this regulatory dysfunction.[i] When Congress enacted TSCA, the final legislation reflected a deal under which chemicals then on the market were “grandfathered” in, while new chemicals would be subject to a quick review by the Environmental Protection Agency (EPA). But experience shows that a vast majority of those reviews are based on inadequate data.
Moreover, under TSCA, chemicals are subject to regulation only if the EPA can prove that they present an unreasonable risk of harm to human health or the environment. That “unreasonable risk” standard has proven to be a great barrier to EPA’s ability to regulate toxic chemicals. While more than 80,000 chemicals can be found in the TSCA inventory (including the pre-1979 “existing chemicals” and the post-1979 “new” chemicals), EPA has only been able to ban the use of a handful of chemicals after they went on the market. A weak TSCA leaves the public and the environment vulnerable.
The influx of engineered nanomaterials into the marketplace provides a prime example of a loophole that needs to be closed. Many engineered nanomaterials are, in a sense, just existing chemicals that have been manipulated at a small scale to act in new ways and provide different benefits to product manufacturers and consumers. But from a toxicological standpoint and from an environmental standpoint, these engineered nanomaterials may have very different effects than they would have before they were manipulated. Carbon nanotubes, for instance, are being developed for use in everything from new drugs to solar cells to aircraft. Long carbon nanotubes resemble asbestos fibers in physical structure, and evidence from animal studies suggests that the nanotubes may have health effects more like asbestos than other carbon molecules.[ii] EPA is debating with stakeholders whether nanomaterials should be treated as “new” chemicals or “existing” chemicals under TSCA, but this tired debate misses the real issue: TSCA needs to be amended to expand EPA’s authority to order testing and, if necessary, to regulate these materials.
The Senate has two vastly different proposals on the table for dealing with the broken law. This Issue Alert focuses on the principles for TSCA reform that CPR Member Scholars and staff have identified as most important. It is by no means an exhaustive list, but it underscores the different approaches to TSCA reform that the two bills take. Numerous experts will testify on the details of the S.1009, the Chemical Safety Improvement Act (CSIA), and S.696, and the Safer Chemicals Act (SCA) on July 31, 2013, before the Senate Committee on Environment and Public Works. The purpose of this document is to put that testimony in context.
The most fundamental requirement, of course, is that the cure for TSCA needs to be better than the original legislation. If deal-making and compromises render a new bill weaker than the old, no constructive purpose is served. More specifically, the new TSCA should set health protection as its primary goal, eliminate overly complex cost-benefit analysis, enable EPA to gather information easily, establish a standard for reviewing chemicals that ensures only the best chemicals — from an environmental and public health perspective — are on the market, and encourage state regulatory and civil justice systems that fill holes in federal regulation.
This Issue Alert addresses four elements of TSCA reform:
Testing: TSCA creates a “Catch 22” for EPA, requiring that the agency show a chemical may present an unreasonable risk of harm to human health or the environment before it can demand new test data that would help the agency determine whether it can make that case. The provision should be scrapped and replaced with language that gives EPA broad authority to demand test data for any reason related to implementation of the Act.
Standard of review: The federal courts’ crabbed reading of TSCA has left Americans vulnerable to a regulatory system in which chemicals are assumed safe until proven hazardous, and EPA’s efforts to make a case to the contrary are stymied by insufficient information and limited authority to regulate. A novel, competition-based standard of review would transform the TSCA framework from “anything goes” to “the best of what science can offer.”
Deadlines: Time and again, Congress has gone back to rewrite public health statutes to demand that regulatory agencies take specific actions according to specific schedules. TSCA has never undergone comprehensive revisions along those lines, which is why the safety of thousands of chemicals has never been reviewed by EPA. It is high time Congress set a schedule for review.
Preemption: State legislatures, regulatory agencies, and courts play valuable roles in preventing toxic exposures and ensuring compensation for people who are adversely affected by dangerous chemicals. TSCA must encourage vibrant state action to protect people and the environment by preempting only those laws that make compliance with federal standards impossible.
Congress deserves approbation for attempting to fix TSCA. If it worked properly, the statute would fill the interstices between protections afforded by other regulatory programs that address chemical hazards in the air, water, and land, in consumer products, and in the workplace. It is critical that changes to the statute embody the progressive principles that will transform our regulation of chemicals from “anything goes” to “the best of what science can offer.”
Steinzor TSCA op-ed. Read Toxic Chemicals Bill Trumps State Rights, by Rena Steinzor, June 26, 2013, in The Hill, about the Vitter-Lautenberg proposal to reform the Toxic Substances Control Act (TSCA).
[i]See, e.g., John S. Applegate, The Government Role in Scientific Research: Who Should Bridge the Data Gap in Chemical Regulation?, inRescuing Science from Politics: Regulation and the Distortion of Scientific Research (Wendy Wagner & Rena Steinzor eds. 2006) 255, 255, 268 (discussing the failure of environmental law in general and the Toxic Substances Control Act (TSCA) in particular to generate information).
[ii]See, e.g., Poland et al., Carbon nanotubes introduced into the abdominal cavity of mice show asbestos-like pathogenicity in a pilot study, 3 Nature Nanotech. 423 (2008). See also, Dep’t of health and Human Services, Centers for Disease Control and Prevention, National Inst. of Occ. Safety and Health, Current Intelligence Bulletin 65: Occupational exposure to Carbon Nanotubes and Nanofibers (Apr. 2013).