MARCH 27, 2015
A Dow Chemical Co. plant in Torrance, Calif. Dow, the largest U.S. chemical
maker, is among those companies that would face tougher oversight of their
products’ environmental safety if Congress were to reform the Toxic Substances
Control Act. (David McNew/Getty Images)
UPDATE: This post has been updated to include further
details about the Vitter-Udall bill, and clarifies the details of the cost
determinations the proposes.
Chemicals are everywhere — we’re made of them, and so
are the products we use and the objects we come into contact with.
Naturally, some of these substances could be bad for our health,
perhaps capable of causing cancer and other diseases.
Regulators have presumably barred unsafe chemicals from
being made and used, right? Not so. In fact, only a tiny percentage of
chemicals are regulated.
How could this be? A major reason is that
the Toxic Substances Control Act (TSCA), a 1976 law that protects
humans and the environment from toxic industrial chemicals (pesticides, drugs
and cosmetics are handled under different laws), has created so many hoops for
regulators to jump through that it has often rendered them powerless. That’s
one rationale that the Government Accountability Office, Congress’s nonpartisan
watchdog arm, has cited in repeatedly calling toxic chemicals regulation one
of the government’s “high-risk” programs.
Now, a bipartisan bill from Sens. David Vitter
(R-La.) and Tom Udall (D-N.M.), introduced last week, would overhaul TSCA’s
core provisions for the first time since its birth nearly 40 years ago.
Here’s the problem: Congress has tried repeatedly to fix
this issue and failed. It’s tough to get all stakeholders involved — including
chemical companies and environmental and health groups — to find a middle
ground. And in today’s gridlock-marred age of toxic politics, not
even a bipartisan toxics law reform bill such as Udall-Vitter is
guaranteed to survive.
Taking TSCA to task
So, what’s wrong with the current law? For starters, TSCA
allowed all 62,000 chemicals that were in commerce before 1976, the year
it became law, to stay on the market unless the Environmental Protection Agency
later found that they posed an “unreasonable risk.” How many of these has the
EPA studied since then? Just a couple of hundred. How many has it banned?
Only five, among them dioxins and hexavalent chromium.
Any chemicals after 1976, meanwhile, could enter the
market unless the EPA could establish this “unreasonable risk.” The
problem: The agency has only 90 days to make that decision, and
rarely does it have all the toxicity data it needs. As a result, nearly
all substances the industry wants to make and sell are allowed to go on the
market.
And to make matters worse, environmentalists have
argued that this “unreasonable risk” standard, as defined
now, has proved too tough a bar for EPA to meet. Why? Because EPA has to
consider the costs of regulation in deciding what makes the risk
“unreasonable.” In 1991, a judge struck down the agency’s ban on asbestos —
fibrous minerals that are known to cause the deadly lung cancer
mesothelioma — in part because the agency hadn’t fully considered
the costs of banning it. Since that ruling, the EPA hasn’t successfully
used its TSCA ban powers.
Other aspects of TSCA simply make the EPA’s life even
tougher. For instance, it can’t require companies to test
substances unless the agency shows that there might be a risk to
begin with. If it sounds like a chicken-and-egg problem, that’s because it is.
It’s little wonder, then, that our toxics law is so
ineffective. So why haven’t we fixed it? The answer lies in how we would do so.
For so many of the law’s problems, consensus has been hard to come
by. Key among these issues is something known as the safety standard: the
minimum bar for safety a substance must meet.
Can we find some chemistry here?
Some, particularly in the environmental/health community,
want our chemical laws to look more like the European Union’s. There,
substances generally can’t go on the market unless manufacturers can
provide data showing they’re safe. The E.U. places much more trust in the
precautionary principle, the idea that in the absence of evidence, it’s
better not to take any chances.
But don’t expect the United States to go with an
E.U.-like safety standard. Past efforts by the late Sen. Frank Lautenberg
(D-N.J.) to enact legislation with that kind of standard failed, in large
part because of industry opposition. These concerns might not be totally
unjustified — reasonable people can disagree about how precautionary we
should be before we become too precautionary.
But a bill that doesn’t go far enough won’t get enough
support from public-interest groups and Democrats. One bipartisan
measure from Lautenberg and Vitter last Congress used the far weaker
“unreasonable risk” standard that TSCA currently has, with a few tweaks. Environmental
and health groups opposed it for that and other reasons. That bill also
died.
A reasonable middle ground?
Now, the Vitter-Udall bill, seeking to strike
a middle ground, keeps the standard that
requires proof that there’s no “unreasonable risk” that a product is
harmful, but changes specific aspects of that standard. Under the
bill, chemical makers would now generally need to show
their substances meet this standard for them to enter commerce — and
couldn’t go on the market by default after 90 days.
And no longer would the EPA
have to consider costs in deciding whether a substance’s risk is
unreasonable and pick the least costly solution — the very issue that doomed
the asbestos ban.
The EPA also would face deadlines for assessing and
regulating chemicals already on the market, starting first with 25 substances
the agency thinks pose the highest threat. And unlike today, EPA could require
companies to do additional testing of a chemical without first having
to show that it might be risky. At least on the surface, all this seems to
add up to a tougher system than what we have now.
But once again, a familiar problem has emerged: To some,
this middle-ground solution may not be so good. Nearly all environmental
and health groups — the lone exception being the Environmental Defense Fund —
and liberal Democrats such as Sen. Barbara Boxer (Calif.) are opposing
Vitter-Udall, saying it could be worse than current law. They worry that
it wouldn’t require EPA to act quickly enough or review enough chemicals,
all while blocking states from enacting future restrictions on
substances the EPA designates as “high priority.” To them, that’s a recipe
for disaster.
A lot is at stake here. For one, a number of substances
may cause cancer, a reason the President’s Cancer Panel in 2010
called for reforming TSCA. Other potential health problems are at
stake, too, including birth defects and neurological and developmental
problems. And the current laws haven’t given people much confidence
in the industry. If there’s something that chemical makers and environmental/health
groups agree on, it’s that TSCA needs fixing.
But as TSCA reform’s futile history has shown us, sometimes
even the problems we agree on the most can’t be fixed so easily — because it’s
much tougher to agree on the solutions.
Source: http://www.washingtonpost.com