Reforming the Toxic Substances Control Act (TSCA) has been in the news due to the recent bills under discussion in the Senate’s Committee on Environment and Public Works (EPW). A lot of y’all know plenty about it, probably more than me, so I am reluctant to do a huge review here. But I thought a little summary would be useful for some and would certainly help my own head get clear on the drama.
How It Has Been Working
The original TSCA was passed in 1976. It covers anything “associated with the manufacture, processing, distribution in commerce, use, or disposal of chemical substances both naturally occurring and synthetic”, with some notable exceptions including food, cosmetics and pesticides. In the past 39 years the EPA has only been able to regulate 5 preexisting chemicals under TSCA; that is 5 chemicals from 80,000, as quoted by the EPA director. They are PCBs, halogenated chlorofluoroalkanes, dioxin, asbestos and hexavalent chromium. There have been 4 new chemicals developed since 1976 that the EPA regulates under TSCA: mixed mono and diamides of an organic acid, triethanolamine salts of a substituted organic acid, triethanolanime salt of tricarboxylic acid, and tricarboxylic acid. You would think this would be relatively easy information to find since there is a whole bill devoted to regulating these substances and they have had 39 years to do 9 of them but…no. I finally got the details from Dean Bill Chameides’s blog at Dukes’s Nicolas School of Environment who went on quite the hunt himself.
To clarify, regulating does not mean banned. In fact the EPA was unable to ban asbestos thanks to loopholes and vague wording within TSCA. Asbestos is a known human carcinogen and I just assumed it was banned. I was wrong; in 1991 the U.S. Court of Appeals for the Fifth Circuit threw out most parts of EPA’s regulation of asbestos. Asbestos is still heavily used in brake shoes today. To put it simply, the original TSCA has very loose and minimal health standards, especially with regards to vulnerable populations, the timeframes for assessment are ridiculously long and cost benefit analysis is a required checkpoint throughout the assessment process.
To see a fun, easy, flow chart on how it currently works you can click here but to summarize, thousands of chemicals were grandfathered in and risk assessment has only been performed on less than 2% of chemicals in commerce. Why? The chemical industry has got a self preservation streak and lot of money. They have spent $190 million in the last three years on lobbying, knowing that reformation was coming.
The Issue Now
This spring the Senate Environment and Public Works Committee began legislative hearings on a new bill to reform the original TSCA. The bill will be discussed and the committee will vote on it before it passes it onto the full senate. The new bipartisan legislation, originally proposed by Sen Udall (D-N.MM) and Sen Vitter (R-La), was supported by chemical industry lobbyists and so weak on the reforming part that it didn’t get far at all with the committee. Instead, a new version was proposed by Sen Boxer (D-CA) and Sen Markey (D-Mass). That is the critical issue at hand, can the committee agree on one of the bills, hopefully the one that is better for our health? The key differences between Udall-Vitter bill and Boxer-Markey bill are…
It’s all about the a critical phrase or two. The current TSCA bill states that the EPA can only regulate if there is “unreasonable risk” which is determined by comparing the severity and likelihood of injury to the economic burden of regulation to industry and consumers. The Udall-Vitter bill keeps the old ambiguous term rather than accurately defining a safety health standard. The courts would then continue to interpret the legislative intent as requiring a cost benefit analysis to ban or phase out substances. The Boxer-Markey bill, along with public health advocates and anybody else with a brain, is pushing for a standard that includes a “reasonable certainty of no harm” which is the standard used by the EPA and FDA to judge chemicals in food and pesticides. There is some further language dealing with judicial review (deciding whether to uphold or overturn an EPA decision) that the Boxer-Markey bill changes from “substantial evidence” to “arbitrary and capricious”, once again bringing the standard in line with language used in other EPA regulated legislation.
The Boxer-Markey bill also clears up the issue of when to apply cost benefit analysis stating it would only be used if the economic effect is likely to exceed $100 million a year. The old bill and Udall-Vitter also put a limit (25% of the total program cost up to a $18 million cap) on industry fees for safety reviews while the Boxer-Markey bill simply makes sure industry funds the program enough to do its assessment job in the time frame set.
The Boxer-Markey bill moves the process along for more substances than the Udall-Vitter bill; 75 chemicals in 5 to 7 years as opposed to 25 chemicals in the same time frame. The Boxer-Markey bill expedites review of asbestos (explicitly stated) and other chemicals that are persistent in the environment and build up in people, without having to prove significant exposure. If it is everywhere in our environment and builds up in our systems then there is no need to further prove exposure incidents. The Boxer-Markey bill also covers spill risks explicitly, a point completely overlooked in the Udall-Vitter bill.
The Udall-Vitter bill limits state power to regulate chemicals while they are in the official assessment phase under TSCA, which can be up to 7 years long. The Boxer-Markey bill allows states to do what they have already been doing, regulating themselves. By legislating more nimbly than the federal government, the state regulations can motivate companies to move standards in the right direction using the open market. Some substance restrictions successfully imposed by states include BPA (Minnesota), mercury in thermometers (Louisiana), phthalates in toys (Vermont), and flame retardants in couches (California and more).
For those who do want deeper analysis, history, commentary let me suggest the sources where I got my facts, figures, and legalese interpretation.
Environmental Working Group, Safer Chemicals Healthy Families, and the Collaborative on Health and Environment have multiple articles, blogs, reports, etc. There’s also a good article at the Center for Health and Justice and a public letter from an impressive group of scholars to the committee.
OK, now that we all understand it as best as we can understand legislation and politics, what can we do about it? We could visit EWG to sign some online petition type letters or we could write our own. I have heard, and it certainly makes sense to me, that individually written messages (letters or emails) or phone calls are given much more consideration than the online petition type. So even if you paraphrase some bits from these great online sources you can make more of an impact by writing your own letter and mailing it to your senator or the committee. I’ll eventually include mine, which you are completely welcome to just flat out copy if you want, if I can only finish writing it. My kids are on spring break and my home is showing some serious Florida wear and tear that is demanding my attention. But in a hopeful finishing act, here is the link for finding contact information for your senator and another for the link to contact the EPW committee directly.