Following Senator Lautenberg’s introduction of the Safe Chemicals Act in April, House Representatives Bobby L. Rush (D-IL) and Henry Waxman (D-CA) introduced the Toxic Chemicals Safety Act 2010, H.R. 5820, a bill discussing reformation methods for the federal Toxic Substances Control Act. Over thirty years since Congress first opened discussion of protection from toxic chemicals, TSCA was first brought into the legal spotlight in 1976. However, following TSCA’s initial introduction, little success has been proved by a bill which lacked safety review, maintained unregulated public chemical exposure, and created disruptive communication amongst the EPA, FDA, and the act itself.
This most recent bill would overhaul the 1976 Toxic Substances Control Act, which has done little to regulate chemicals in consumer products, including those linked to cancer and other health problems. The House legislation would heavily increase public health protections from toxic chemicals.
Some aspects of the bill include:
- Requiring the chemical industry to demonstrate that a chemical is safe, as opposed to relying on the EPA to prove a chemical is unsafe.
- Requiring chemicals to meet a health standard before they are allowed on the market.
- Requiring chemical manufacturers to provide basic health and safety information for all chemicals, as a condition for being allowed to remain on the market.
- Requiring the EPA to rely on the National Academy of Sciences’ recommendations to incorporate the latest science in chemical safety determinations.
- Requiring the EPA to identify and restrict persistent, bioaccumulative toxins.
The Subcommittee on Commerce, Trade, and Consumer Protection recently held a hearing discussing the legislation’s next steps in amending the Toxic Substances Control Act. Notably, Steven Owens, Administrator at the EPA Office of Chemical Safety and Pollution Prevention, opened discussion by admitting to EPA’s need in developing more cooperation from the chemical industry in regulating global safety from toxics. Owens stated that “implementation of the law should be adequately and consistently funded, in order to meet the goal of assuring the safety of chemicals, and to maintain public confidence that EPA is meeting that goal. To that end, manufacturers of chemicals should support the costs of Agency implementation, including the review of information provided by manufacturers."
At the same hearing, Calvin Dooley, president of American Chemistry Council, noted “any approach toward updating chemical regulation should
· Ensure worker, consumer and public safety as its highest priority;
- Preserve the ability of the United States to serve as the innovation engine for the world; and
· Protect the hundreds of thousands of American jobs fueled directly and indirectly by the business of chemistry.
I am sure most can agree that it is well beyond time for measures to be taken in reforming the 1976 Toxic Substances Control Act, first signed into law by President Ford. Now, under the Obama administration, we are taking bigger steps to make our country safer and increasingly protected from toxins and chemicals flooding our industry. With huge concern, the Toxic Substances Control Act of 1976, has grandfathered over 60,000 without review into our public system
"Flaws of the Toxic Substances Control Act
The Toxic Substances Control Act (TSCA), which Congress passed in September of 1976, was supposed to give Environmental Protection Agency (EPA) the authority to identify and regulate dangerous chemicals. The law was also supposed to require chemical companies to give Americans the information needed to assess the safety of their products.
The "grandfather" problem
Unfortunately, TSCA "grandfathered in" some 62,000 chemicals in use at the time it was enacted—that is, chemical companies could keep selling them without safety testing. Today,
The "unreasonable risk" problem
TSCA contained another fatal flaw. To regulate a chemical, the law places the burden of proving a chemical is causing harm on EPA, rather than requiring chemical producers to prove their chemicals are safe. In addition, the law requires that EPA prove a chemical presents an "unreasonable risk."
In practice, this standard has been impossible for EPA to meet. The only chemicals banned under TSCA are PCBs (polychlorinated biphenyls), which were widely used in transformers and electrical equipment and that happened only because the ban was written by Congress into the original law.
In 1991, a federal Court of Appeals threw out EPA's regulation banning asbestos because, the court said, the agency had failed to show that asbestos posed an unreasonable risk. In the wake of this precedent, EPA never tried to ban a chemical under TSCA again.
The secrecy problem
Under TSCA, chemical companies can label as trade secrets virtually any of the information they submit to EPA about their products. And EPA, the law states, may not share information claimed as secret with the public, with state or local governments, or with the governments of other countries.
The chemical industry is highly competitive, and some protection for research and trade secrets is reasonable. But They make the same claim even about many chemicals for which they are required to submit health and safety data.
EPA can challenge these claims. But TSCA says they must be contested on a case-by-case basis, and the agency simply hasn't the resources to examine more than a tiny percentage of the thousands of claims made each year.
The result? And even health and safety information, which under TSCA is supposed to be ineligible for trade secret protection, is routinely claimed by companies to be confidential, rendering the information inaccessible to the public."