The Flawed Legislation of the Toxic Substances Control Act
For all of its lofty goals and prodigious responsibilities, there’s no denying that the Toxic Substances Control Act is a bit dated. Not only was it enacted in 1976 (that’s forty years ago), but it has also been tragically riddled with flaws since its formation.
The Toxic Substances Control Act (TSCA) serves a noble purpose: reducing the associated risks of toxic chemicals to human and environmental health. It has done some (nominal) good, too; TSCA is responsible for limited regulations on polychlorinated biphenyls (PCBs), asbestos, and lead-based paint.
Still, there are more than 84,000 chemicals on the market in the United States today (thousands of which can be found in common household products), and only a meager fraction of these have been tested for safety. Many chemicals already known to be dangerous continue to see completely unregulated usage. Consequently – and perhaps unsurprisingly – many see TSCA as nothing more than a total and consummate failure.
A failed law should necessitate reform, but efforts to update TSCA (dating back to 1994) have been largely ineffective – at least until now. It appears as though things finally might be about to change. On April 28th, a bipartisan bill to UPDATE TSCA won approval from a Senate committee, moving it one step closer to a full Senate vote.
That bill, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, would amend TSCA in multiple ways: it provides a risk-based prioritization process for testing chemicals, makes clear that cost considerations cannot be considered as a factor in determining a substance’s safety, systematizes rules regarding confidential business information claims, and expressly decrees that chemicals cannot be manufactured until the EPA has given its approval.
Before agreeing to support the bill, three Democratic senators – Jeff Merkley of Oregon, Sheldon Whitehouse of Rhode Island, and Cory Booker of New Jersey – won several key compromises. The newly added compromise language confirms that states may enforce regulation of a chemical if the EPA misses deadlines and that states will be able to regulate chemicals on their own while the EPA evaluates them.
Another bill – sharing similar goals – the TSCA Modernization Act, is presently with the House Energy and Commerce Subcommittee on Environment and the Economy. The TSCA Modernization Act would require the EPA to execute risk assessments for dangerous chemicals within a three-year period, distribute risk management rules within ninety days of completing an assessment, and maintain individual states’ rights to deliver their own protections.
Though both bills have seen only limited success thus far, and though the ultimate outcome remains unclear, the public at large seems to agree on one thing: the Toxic Substances Control Act is in desperate need of an overhaul.