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When it Comes to Chemicals, How Safe is “Safe”?
Industrial chemicals are everywhere in daily life — in personal care products, furniture, household cleaners, toys, and even peanut butter. Because some chemicals once thought harmless have been linked to cancer, neurological problems, asthma, heart disease and other disorders, Americans deserve a strong federal law that ensures that the chemicals they encounter are as safe as possible.
The federal law that regulates most chemicals other than those used as pesticides, and certain components of foods, drugs, and cosmetics — the Toxic Substances Control Act of 1976 — is widely considered to be broken and badly in need of reform. One reason is its inadequate safety standard. In the legislative realm, “safe” rarely means zero risk or harm. Instead, it refers to the level of acceptable risk or harm defined by Congress in a law’s safety standard. The Toxic Substances Control Act requires the U.S. Environmental Protection Agency to evaluate a chemical’s safety in terms of whether it poses “an unreasonable risk of injury to health or the environment.”
When is risk “unreasonable?” The financial stakes of this decision are enormous, because restrictions aimed at managing risks can cost industry millions of dollars. Courts have interpreted this term to mean that an agency must evaluate the costs and benefits of regulatory action when determining the level of risk the public must tolerate. The Toxic Substances Control Act also requires the EPA to conduct a detailed cost-benefit analysis and consider the costs of alternative actions before banning or restricting a chemical that presents an “unreasonable risk.” The law goes on to say that the EPA must pursue the least burdensome approach to restricting such a chemical. That is not easy to quantify.
In practice, the Toxic Substances Control Act lays out so many hurdles that the EPA has little power to restrict dangerous chemicals. One notorious example: for a full decade, the agency tried to ban asbestos. Its efforts were futile. In 1991, a federal appeals court struck down the agency’s asbestos regulation, and the impact of that decision largely paralyzed agency action under the law.
EWG has long advocated crafting a new safety standard for the law that would make public health the top priority. In legal terminology, the safety standard that EWG supports would require the EPA to make sure that a chemical presented “reasonable certainty of no harm.” This standard would require the agency to err on the side of caution in order to protect public health.
Congress used the “reasonable certainty of no harm” formulation as the safety standard in the federal Food Quality Protection Act of 1996. This law reformed the standard used by EPA to set permissible levels of pesticide residue on foods. It requires the agency to conduct risk assessments of pesticides based on human health risks, taking into account people’s aggregate exposure to pesticides and the special vulnerabilities of children to these substances. This law does not demand the same arduous balancing of costs and benefits and evaluation of alternatives as the Toxic Substances Control Act. The Food Quality Protection Act puts the protection of children's health first. In contrast, the Toxic Substances Contol Act gives priority to how much that protection will cost industry.
EWG and other public health and environmental groups have worked for years to convince Congress to reform the Toxic Substances Control Act to confront the challenges of chemical safety in the 21st Century. These groups and the American Academy of Pediatrics favor the health-protective standard embodied by the Food Quality Protection Act’s “reasonable certainty of no harm” standard.
But the latest industry-backed bill aimed at reforming the Toxic Substances Control Act — the Chemical Safety Improvement Act, introduced in the Senate on May 22 — would set the reform movement back years. It would preserve current law’s safety standard, which demands proof of unreasonable risk of harm and therefore fails to make public health, particularly the health of vulnerable populations, the top concern. Similar to the Toxic Substances Control Act, the bill would also require the EPA to base its decision to ban or phase out a chemical on, among other things, the costs and benefits of the proposed regulatory action and alternative actions.
How much paperwork would a regulatory action involve and how many alternatives would the EPA have to consider? The bill doesn’t specify. And that vagueness has caused a number of legal scholars to question whether the bill would streamline EPA’s efforts to restrict dangerous chemicals like asbestos.
A law that would preserve current law’s unworkable safety standard for another generation isn’t reform. That’s a big reason EWG opposes the Chemical Safety Improvement Act — and it’s why we’ll keep fighting for real reform. That will take a health-based definition of safety that factors in the many ways we are exposed to chemicals and the special risks they pose to children and others who are particularly vulnerable.