Might we soon be facing an effort to roll back the Toxic Substances Control Act?

Richard Denison


It seems like only yesterday there was broad consensus on the need to strengthen the Toxic Substances Control Act (TSCA), a consensus that included the chemical industry.

But that was then. Now there are growing indications that legislation will soon be introduced in the U.S. Senate that would not only not fix the fundamental flaws of TSCA, but would actually make the law even weaker. 

The first clue came from comments that the Republican minority filed on last year’s Safe Chemicals Act (which was just re-introduced yesterday). Among the many objections, they argued against a standard that has been endorsed by major medical groups as necessary to protect vulnerable subpopulations, especially the developing fetus, infants and young children. That’s a standard that also reflects the recommendations from the National Academy of Sciences to address the multiple chemical exposures that people face in the real world.

Now it appears that Senator David Vitter (LA) is close to introducing a TSCA bill of his own, written in close collaboration with the American Chemistry Council (ACC) and a scant few of its member companies. By all reports, other chemical industry and related interests have had little opportunity for input, and other key stakeholders – the health and environmental communities, workers, consumer groups, health professionals, etc. – have been completely cut out of the process.

And while details are sketchy because few people have seen any actual text, the Minority’s comments and other sources suggest that the bill may contain provisions that would actually weaken current TSCA.  Here are just two examples:

  • The bill could further limit EPA’s already highly constrained authority to ask for more information on chemicals.  It would reportedly force EPA to rely on existing data, however sparse, for key decisions.  EPA would have to document in detail why it needs more information – exacerbating the Catch-22 under current TSCA whereby EPA has to be able to show a chemical poses a potential risk in order to require testing to determine if there is a risk. And EPA would be constrained as to when in the process it could request new information.  If true, these provisions would weaken EPA’s already inadequate information authority under current TSCA.
  • The bill reportedly would wholly quash state authority to address chemical risks. Worse, this pre-emption would start at the moment EPA initiates an assessment of a chemical – which is typically many years before any decision is made about whether to regulate that chemical. Even putting aside the need for states to be able to address their own priorities and geographic and population factors specific to their states (e.g., native populations highly dependent on wild plants and animals for food), think of the perverse incentive this approach would create for industry to seek to delay assessments and needed regulatory actions – states would have already been pre-empted from acting to fill the void!  Again, if true, this provision would be a severe roll-back of state authority under current TSCA.

Indications are that the bill would leave unchanged the provisions under TSCA that address new chemicals. This would perpetuate a flawed system in which EPA is compelled to review within 90 days each of more than 1,000 new chemical notifications annually, the vast majority of which include no health or environmental data whatsoever. This lack of any upfront safety data requirement stands in contrast to the policies of virtually every other developed country in the world. Only if EPA can meet its burden to affirmatively find that the chemical is expected to pose an unreasonable risk can it slow its review, require testing, or seek to negotiate conditions with the notifier on production or use of the chemical. These are the kinds of problems with the TSCA new chemicals program that led EPA’s own Inspector General to reach conclusions such as this:  “EPA’s assurance that new chemicals introduced into commerce do not pose unreasonable risks to workers, consumers, or the environment is not supported by data or actual testing.”

It’s exceedingly hard to see how “reform” along these lines would do anything to restore consumer confidence in our failed system for assuring chemical safety, let alone resolve the growing debate in the market, in the scientific and medical communities and in the public square over the risks posed by the ever-expanding range of chemicals and chemical-containing products we encounter in our daily lives.

I urge any Senators thinking about signing on to this approach to reconsider whether they want to be associated with a roll-back of health protections under what is widely acknowledged to be the weakest of all of the major health and environmental laws – one that will be opposed by every environmental health organization in the country.

This post originally appeared on our Chemicals & Nanomaterials blog