Toxic Substances Control Act (TSCA) Reform: The Vision vs. The Reality

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TSCABy Nancy Buermeyer, Senior Policy Strategist

As the ink dries on the President’s signature on the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the first law to amend the Toxic Substances Control Act (TSCA) in the last 37 years, it is worth a look back over the past decade plus of advocacy for chemical policy reform to remember our vision, and assess the reality of what we wanted versus what we got from the final legislation.

A vast array of organizations and individuals representing environment health, public health, environmental justice, reproductive health, labor, medical professionals, scientists, progressive businesses, state officials (attorneys general, environmental departments, legislators), and of course our champions in Congress, all played critical roles in moving this bill closer to our end goal of protecting people  from unsafe chemical exposures linked to increasing rates of breast cancer and other diseases. Unfortunately the new law falls far short.

As the Breast Cancer Fund, and our allies, continues to analyze the law’s details and implications, we also remember what that original vision of TSCA reform was and remains. Not only will it put into perspective what we have achieved, but will serve as a reminder to us all of the work that stands before us, and serve notice to Congress and the chemical industry that we are not done and will continue to push and hold Congress and the federal government accountable until they do their job and create and enforce  the law in  a way that truly protects the public from dangerous chemicals.

Here is a review on how the new law measures up to the foundational elements of the policy the Breast Cancer Fund envisioned. Of course, some groups and organizations prioritized issues differently and there are certainly other provisions not covered here. However, there was general consensus that these are the elements needed to truly protect public health:

Create a Strong Safety Standard

Currently, chemicals are “innocent until proven guilty” in terms of their safety. This concept may work for our criminal justice system, but amounts to treating the public as guinea pigs in a huge uncontrolled experiment in chemical exposure.

One of the primary failings of TSCA was the requirement that any regulation of a chemical be “cost effective” and the “least burdensome” to industry. The new law addresses those specific concerns by making clear that any EPA assessment of safety be based solely on health impacts, without regard to the costs to industry of regulating that chemical. This is an important improvement to the original law. However, the underlying safety standard in the original law – unreasonable risk of injury – was not changed. By contrast, the safety standard we wanted was “reasonable certainty of no harm,” which would have shifted the burden of proof to industry to show a chemical is safe rather than the current standard which requires the government to demonstrate a chemical causes harm.

Protect Vulnerable and Disproportionally Exposed Populations

Chemicals impact bodies differently depending on the timing of exposure.  For instance, exposure to a particular chemical in utero may have  more devastating health impacts than exposure in adulthood. In addition, certain occupations and some communities, often people of color, low income and indigenous people, have higher exposures to multiple chemicals, resulting in more adverse health impacts. This is another area where the new law makes progress over current law. The safety assessment and resulting regulation is required to consider and protect “potentially exposed or susceptible populations.”

Ensure Environmental Justice

While some progress was made on disproportionally exposed communities, one of the key goals of environmental justice communities– the requirement that the EPA identify and take action to address environmental “hot spots” – was dropped like a hot potato early on in the bill negotiations. Under the new law, the EPA will not, as we had hoped, be required to systematically identify communities bearing the worst chemical burdens and create and implement plans of actions to reduce those exposures. Identifying these “hot spot” communities was a “non-starter” for the chemical industry, represented by the American Chemistry Council (their trade association). They have no interest in being held responsible for the chemical havoc they have inflicted on low income and people of color communities.

Review of All Chemicals; Take Immediate Action on the Worst Chemicals

The public has a right to expect that ALL of the chemicals they are exposed to, often unwillingly and/or unknowingly, be reviewed prior to being introduced into commerce to ensure they are safe. Given that more than 85,000 chemicals are currently approved for use in commerce, this is an enormous  task. Even if the universe of chemicals is narrowed to the few thousand that have high production volume and/or high hazard concern, the pace set in the new law is totally inadequate. The new law directs EPA to begin work on 10 chemicals within the first six months, and choose additional batches of 20 chemicals in year two and year four. After that, EPA need only begin a new chemical review once a previous one is completed; and regulation of a single chemical can take up to seven years. While progress will be painfully slow, given that EPA has only regulated five chemicals in the last 37 years, it is at least a start.

For many of the worst chemicals – for instance asbestos, which is responsible for killing thousands of people each year – we already know more than enough about their toxicity to take action. Rather than lengthy and contested safety reviews, the EPA should act immediately to reduce exposures. One class of chemicals that falls into the “worst” category is persistent, bioaccumulative toxicants (PBTs). The final law gave a nod to PBTs, but with a caveat. The EPA is authorized to regulate PBTs without going through a safety review, unless industry objects – a classic case of two steps forward, one step back. The positive step forward is that PBTs are still prioritized for early focus and industry will have some limits on the number of objections they are permitted to raise. Action on PBTs cannot come soon enough for those populations, particularly the Native Alaskan people in the Artic, who carry extremely high levels of these toxic chemicals in their bodies.

Provide New Testing Authority; Minimum Data Set

Another of the key failings of the original law was the extremely high and cumbersome hurdle set for EPA to require industry to even test chemicals suspected to be hazardous. The new law takes a clear and important step forward by providing the EPA a much easier administrative mechanism to require testing during the process of prioritizing or reviewing the safety of chemicals.

On the flip side, EPA still has to request and justify required testing on a chemical-by-chemical basis. One of our primary  goals for TSCA reform was to legislatively mandate the principle of “no data, no market” – the notion that if a manufacturer can’t provide a “minimum data set” to show a chemical is safe, it doesn’t get to market the chemical. This provision was another “non-starter” for industry. Not only did the final bill not require a minimum data set, it actually included language that explicitly prohibited the EPA from developing one.

Use of the Best Available Science

The science identifying and understanding how chemicals impact our health has progressed light years since the original passage of TSCA in 1976. Yet the way EPA considers science has often not kept pace. Our goal was to have the EPA follow the recommendations of the nation’s leading scientists at the National Academy of Sciences (NAS), for instance considering real world chemical exposures from multiple sources and the unique characteristics of chemicals that disrupt our hormone system. The bill calls for EPA to consider the NAS recommendations, but they are not required to follow them. A case in point is the new law’s treatment of aggregate exposure. All of us are exposed to a toxic soup of chemicals everyday. Looking at those chemicals individually, or only looking at a single route of exposure for a particular chemical, does not adequately identify the real world risk to human health from that chemical. Under the new law, EPA must consider whether or not to look at aggregate exposure in its safety reviews, but is not required to do that analysis.

Industry was successful in requiring EPA to produce unnecessary procedural guidelines to determine and explain how scientific decisions will be made.  While not a problem in and of itself, the development of these guidelines will take precious time and resources away from actually regulating dangerous chemicals. It will also provide industry the opportunity to influence those guidelines to skew the science used away from independent science and toward industry-sponsored science. The inclusion of terms like “weight of the evidence” provides just such an opportunity. The end result will depend on how EPA defines and implements the law, and industry will be in the middle of the debate urging the most detrimental and least health-protective interpretation.

Finally, the new law puts significant new burdens on EPA before they can require animal testing. We all want to reduce animal testing but not at the expense of accurately predicting the negative impacts of chemicals on both humans and wildlife. Again, how the EPA implements this provision will be critical.

Public Right-to-Know Chemical Identity

Chemical companies have enjoyed free rein to keep even the identity of a chemical secret from the public by claiming “confidential business information” or CBI. The result is that the public, even medical professionals treating patients or scientists interested in studying the impact of chemicals on human health, are not allowed to learn the identity of chemicals, even harmful chemicals, protected under CBI. Once designated as CBI, federal employees are subject to civil and criminal penalties for releasing the information to an “unauthorized” individual. The new law makes some progress by at least requiring that companies justify to the EPA why the information should be kept secret and the EPA will decide the validity of the claim. It also expands the universe of individuals authorized to receive the information to include state and local agencies and medical personnel. However, release of CBI to these entities is subject to delays of 15 – 30 days to allow companies to go to court to keep the information secret. Anyone who receives the information would face the criminal and civil charges for sharing the information.

Provide Adequate Resources for the EPA

All the best authority and intentions in the world will not make a whit of difference if the EPA does not have the resources – e.g. funding – to accomplish the monumental task of assessing and ensuring the safety of industrial chemicals. The bill does require industry to pay fees to support the program, which is a step in the right direction. However those fees are capped at a meager $25 million – for the entire chemical industry! That may sound like a lot to us regular folk, but it is a rounding error in relation to the chemical industry’s profits. This level of funding is not nearly enough to get the job done and contributes to the law’s glacial pace of the safety review of chemicals in commerce.

Continue the Strong Role for the States

The pre-emption of state authority to continue to regulate chemicals was perhaps the most contentious and debated provision throughout the TSCA reform process. For many environmental laws, the standards set by the federal government represent the minimum level of protection required. States can, and our home state of California often does, set more health protective standards. Pre-emption of state actions means that once a chemical is deemed “safe” or federal restrictions are in place, the states may not require a more health protective policy. Overriding state actions on chemical safety was absolutely at the top of the chemical industry’s “must have” list. The strong and consistent opposition to preemption by hundreds of organizations, numerous state attorney generals and environmental departments and our strong allies in Congress somewhat tempered the initial far-reaching preemption provisions that the chemical industry was arguing for, but the final law still went far beyond the preemption that exists in the original TSCA. In doing so, the law sets a dangerous precedent for potential future bills. This resulting federal preemption provision was a key element in the Breast Cancer Fund’s opposition to the final bill.

 

This complicated new law provides clear improvements and clear rollbacks in key areas of the original law; and, in the end, falls far short of the vision of TSCA reform for which the Breast Cancer Fund was striving. What is absolutely clear is that without the enormous efforts by tens of thousands of individuals and hundreds of organizations, Congress would have passed an even more disastrous bill that would have more severely restricted the states and rolled back some of the few useful parts of the 1976 TSCA, all without making the few meaningful improvements to the federal program that it did. The Breast Cancer Fund is proud to serve on the Steering Committee of the Safer Chemicals, Healthy Families (SCHF) coalition, which played a central role in these advocacy efforts; the SCHF staff and member organizations had a tremendous positive impact on the process and we thank them for all their hard work. We also stand on the shoulders of those advocates who have worked tirelessly for decades to provide protection to those who have faced the most severe health impacts as a result of the total lack of government protections. Without all of our collective voices, the improvements would have smaller and the rollbacks much worse.

As negotiations were coming to a close and the forces of good had achieved all that we could to improve the bill, one of our Congressional champions, Sen. Barbara Boxer, stated “It’s not the bill I would have written” and we agree. The general consensus is that this bill is “better than current law,” and that it was clearly all that could be extracted from this Congress, which is so influenced by the chemical industry. However, we should ask ourselves is “better than current law” really the standard we were striving for, particularly given the very low bar set by the 1976 TSCA? We envisioned TSCA reform that prioritized public health over industry profits, not simply a bill that was better than a terrible, completely failed law. As a result, the Breast Cancer Fund opposed the final bill as falling far too short of that vision. But that does not mean we won’t work long and hard to ensure the best possible implementation of the law.

And so, the work continues – with the EPA as well as the other federal agencies that regulate chemicals including the Food and Drug Administration (personal care products, food, food packaging), the Occupational Safety and Health Administration (occupational exposures) and the Consumer Product Safety Commission (consumer products such as toys and furniture). The Breast Cancer Fund and all of us who care about protecting the public’s health from dangerous chemicals will continue to advocate and agitate to accomplish our full vision because quite literally, our lives depend on it.

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