While the Keystone XL pipeline and power plant carbon regulations are grabbing headlines, another environmental battle is brewing in the month-old 114th US Congress over the future of the Toxic Substances Control Act.
The federal law, also known as TSCA, regulates chemicals that Americans encounter daily in electronics, furniture, clothing, toys, building materials, cleaning and personal care products, and much more. It was enacted in 1976, and – in spite of the introduction of thousands of new chemicals, as well as enormous progress in the understanding of chemicals’ environmental and health impacts – hasn’t been updated since then.
While the law has helped reduce use of some of the most hazardous chemicals – polychlorinated biphenyls and lead, for example – it also has made it extremely difficult to take many other potentially dangerous chemicals off the market.
Unlike the current system in Europe, the 60,000-plus chemicals in production when the US’s TSCA took effect 39 years ago continued to be used without any safety reviews. Most are still in use today, although some have since filed toxicity data.
The US allows the use of many chemicals that are banned elsewhere, and its primary chemicals law has failed to keep up with thousands of chemicals currently in use, including the approximately 2,000 new chemicals introduced each year.
The vast majority of the 80,000 chemicals that it regulates have not been thoroughly tested for health and environmental hazards. Only 25% of the chemicals in consumer products have been fully screened for health effects, according to the US Environmental Protection Agency, which administers the law.
“This is a problem,” says Environmental Defense Fund senior scientist Richard Denison.
Lawmakers on both sides of the aisle, as well as chemical industry representatives and environmental advocates, agree that the law needs revision. What it should become, however, is the subject of considerable debate.
That debate has been in full swing for several years as the Senate has considered several versions of a bill to reform TSCA, none of which have passed. Major sticking points include how the bill will treat stricter state chemical laws, how chemicals will be reviewed for safety and, as Senator Barbara Boxer of California has said, how well the bill will protect public health.
The state law provision is an important issue for environmental health advocates, as many US states – in the absence of federal action – have passed stricter laws of their own, restricting the use of some flame retardants or endocrine-disrupting chemicals, for example. More than 150 state laws in 35 different states now restrict or regulate chemical use, according to health and environment organization SaferStates, with at least 28 states expected to consider further chemical legislation this year.
The new version of TSCA proposed last year included provisions that would pre-empt state law, which critics see as a weakening – instead of strengthening – public health protection.
Meanwhile, Democratic sources also have said the bill failed to address how the EPA would prioritize chemical reviews and how it would weigh chemicals’ impacts on children and other vulnerable populations.
Pinning down the chemical review process is a key issue given it can take many years to complete an assessment under the current process. This makes it difficult for the EPA to restrict even chemicals that are well-recognized as hazardous. Asbestos, for example, remains incompletely banned in the US. The known carcinogen is still allowed in various automotive parts and construction materials.
Toxics “are still shockingly common in our food and everyday objects”, said Senator Jeff Merkley, a Democrat from Oregon.
In addition, the current law protects confidential business information or trade secrets, which can result in key information gaps about chemical hazards.
Take crude-MCHM, the chemical that contaminated drinking water in Charleston, Virginia, last year, leaving the city without potable tap water for days, closing businesses and schools, and creating a healthcare emergency. While the chemical was registered under TSCA, key toxicity information was missing.
“Our current system of evaluating and ensuring the safety of chemicals is broken,” said Senator Tom Carper, a Democrat from Delaware.
So far, details on proposals for a new TSCA reform bill remain scarce. But sources on both sides of the aisle call it a priority and express guarded optimism about passing a bill this year.
Senator Jim Inhofe, chair of the Environment and Public Works Committee and a Republican from Oklahoma, called TSCA one of his top priorities, as did House leaders on the issue, representatives John Shimkus of Illinois and Paul Tonko of New York.
“There’s been bipartisan interest in reform in the past, and I hope improving the oversight and safety around toxic chemicals will be a priority in this new Congress,” Merkley said.
Nancy Buermeyer, Breast Cancer Fund senior policy strategist, and Andy Igrejas, national campaign director of Safer Chemicals, Healthy Families, both expressed “cautious optimism” that legislators would produce a bill that both industry and the public health community can support.
New legislation won’t be identical to the bill from 2014, said Senator Tom Udall of New Mexico, who sponsored the latest TSCA reform bill with Senator David Vitter of Louisiana. “We have spent a year and a half improving that bill and believe we have addressed concerns that were raised against it,” Udall said.
Environmental advocates, as well as the American Chemistry Council, said they expected new versions of the bill to reflect progress towards consensus from the bill considered last year.
Sources said they expect a new reform bill to be introduced by the spring.
“The health and safety of every family in America is affected by what we do – or don’t do – around toxic chemicals, and we must keep pushing forward,” Merkley said.
