While the new version of the Toxic Substance Control Act, or TSCA, that is likely headed to President Obama’s desk includes some important improvements, the bill falls short of adequately protecting Americans from exposure to hazardous chemicals.
Is the bill better than current law? It’s a low bar, because TSCA is widely considered the least effective environmental law on the books.
Here’s what Congress got right:
- TSCA will now require the Environmental Protection Agency to determine whether a chemical is likely to meet the safety standard (albeit an untested standard) before it enters the market.
- TSCA will now require EPA to consider the most vulnerable populations, such as pregnant women and children.
- TSCA will now give the EPA new tools to collect data on chemicals.
- TSCA will now require EPA to quickly regulate (or ban if needed) the chemicals that build up in our bodies and persist in the environment.
- TSCA will now require EPA to quickly review and regulate other “high priority” chemicals, including chemicals stored near drinking water sources, and sets deadlines for companies to comply with new EPA rules.
- TSCA now limits the ability of companies to keep data secret by requiring regular substantiation of confidentiality claims, including old “trade secret” claims.
- TSCA will not include a list of “low hazard” chemicals that could shield dangerous chemicals.
Here’s what Congress got wrong:
- The compromise bill to be voted on today by the House would continue to tie the hands of the states by suspending state action while the EPA studies a chemical’s safety. It would grandfather existing state laws and allow states to quickly act to regulate a chemical that EPA might deem a “high priority” chemical. But if a state fails to act quickly, state action would be suspended for up to three years while EPA completes its review.
- Second, the bill doesn’t require adequate funding from the chemical industry. Even the best law will be meaningless if EPA doesn’t have the resources needed to review the hundreds of dangerous chemicals already on the market. Up to half of the chemicals could be chosen by the chemical industry. To make TSCA better than the status quo, Congress should have provided enough funding to review the most dangerous chemicals in a generation – not a century. Here’s what it would take to get the job done. The compromise bill only provides about half of what’s needed.
- Third, the bill fails to fully eliminate cost from EPA’s consideration of how to regulate a chemical. Both bills purport to end the current requirement to consider the cost of regulation, but each included “poison pill” provisions that could keep EPA tied in legal knots. Using the same tough safety standard already applied to pesticides and food chemicals makes more sense, but negotiators should have at least removed vague requirements that rules be "cost-effective.”
Will the new safety standard crafted by negotiators give EPA the power to restrict or ban the most dangerous chemicals? We'll see.
The failure to include a bulletproof safety standard or sufficient resources, along with the uncertain effects of new restrictions on state action, could ultimately result in less regulatory action than supporters claim. Under the best-case scenario, scores of chemicals could be regulated within a decade. Under the worst-case scenario, chemical companies use litigation to limit EPA’s authority – which is exactly what happened 25 years ago, when the courts overturned EPA’s attempt to ban asbestos.
Ultimately, the right question is not whether this rewrite is better than current law. The right question is whether this version meets the expectations of reasonable Americans who are increasingly concerned about exposure to hazardous chemicals.
Most consumers expect EPA has the power to quickly review the most dangerous chemicals and that the chemicals in their cleaners are at least as safe as chemicals in their food. The new bill fails to meet that expectation.