Our Toxic Chemical Legislation is 40 Years Out of Date

Our Toxic Chemical Legislation is 40 Years Out of Date

Alexis ChapmanFriday,1 January 2016

In 1976 Congress passed the Toxic Substances Control Act (TSCA), which allowed the Environmental Protection Agency (EPA) to require reporting and testing of potentially harmful chemicals. Specifically it addressed PCBs, asbestos, radon, and lead-based paint. If you’re wondering what those things have in common, besides the fact that they’re toxic, it’s that they were manufactured and sold but were previously not regulated. Before the 1970s, government had basically no mechanism for enforcing the safety of things that aren’t food, drugs, cosmetics, pesticides, air and water. Somehow people were smart enough to create a bunch of brand new chemicals and compounds and put them into all sorts of stuff but not smart enough to check whether or not it was safe to do that. People are puzzling.

The TSCA was landmark legislation and it has enabled the EPA to keep some toxic chemicals out of the natural and human environment, which is nice. But it also had some fairly major problems. It grandfathered in a lot of chemicals because they hadn’t been proven to be dangerous (they hadn’t been proven to be safe either, but apparently that was beside the point). And in general it’s reactionary; chemicals usually aren’t tested until they’ve already been introduced and a risk or threat has been found, which means that even when a chemical is identified as dangerous, people and the environment have probably already been exposed. The health and cognitive issues associated with flame retardants are a good, and ongoing (and frankly terrifying) example of the real world consequences of failing to test things before we start using them.

In the forty years since the passage of the TSCA, the problems with the law have been addressed by doing precisely nothing. I think that even the most ardent libertarian would agree that protecting citizens from being poisoned by toxic chemicals is within the federal government’s mandate, so it’s a hard to justify four decades of inaction on this issue. It was probably due to that paralyzing mix of general government dysfunction, industry lobbyists opposed to increased oversight, political fear of backlash if there are negative economic consequences, and the cost of regulation. So for four decades we’ve continued to allow companies to use and create chemicals, and as long as we aren’t ingesting them directly, spraying them on our crops, or putting them on our skin it was kind of a free for all. But finally it seems that our politicians have come to their senses and decided to update the TSCA.

On December 17th the Senate passed HR2576, the Frank R. Lautenberg Chemical Safety for the 21st Century Act. This is another rare and wonderful bipartisan bill. The Senate version has revisions to the House version, so there is a very good chance both houses will be able to reconcile them and get something on the president’s desk in the next couple months. HR2576 would update almost every aspect of the TSCA, from which chemicals are tested (no more grandfathering), to making it easier for the EPA to ban chemicals when necessary. The specific updates in HR2576 are good but the real game changer here is that the new bill seems to be guided by the precautionary principle. This means that under the new law, newly-developed chemicals will have to be proven safe before manufacture, and existing chemicals that had not been tested will undergo testing, at some point.

Of course HR2576 isn’t perfect. The huge backlog of chemicals that will need to be tested will take time, and testing of old and new chemicals will cost money. But the fact that this has bipartisan support is a good indicator of how clearly necessary it is. Even chemical companies are supporting the new bill. That may seem surprising but it actually makes a lot of sense. It’s easier for them to deal with increased federal regulation based on scientific testing than to have to contend with the crazy web of state regulations and businesses’ bans, which are based on public opinion that may or may not be grounded in fact. And of course HR2576 also has backing from environmental groups, most notably the Environmental Defense Fund (though some others say it doesn’t go far enough). Overall, the range and scope of the support for this bill gives it a very good chance of ending up as law. So in addition to being outraged that something as obviously in need of safety regulations as toxic chemicals has been wildly under regulated until now, try to also be optimistic that our elected representatives will keep the bill moving, get it passed, and implement it. Finally.

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Image Credit: Senate Democrats on Flickr

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