[Editor's note: This article was updated on October 20th at 5:30pm to clarify a Senate provision for regulating high-priority chemicals.]
There are tens of thousands of chemicals in our furniture, our vehicles and our clothes, along with other objects we rely on—many of which are helpful, but some might harm people. Yet over the past 40 years the U.S. Environmental Protection Agency has banned or curtailed fewer than a dozen chemical families, and reviewed the safety of only a couple of hundred substances.
This fall the U.S. Congress could enact new laws with some controversial provisions, changing the way chemicals are regulated for the first time in a generation. The question is: Should the bills become law and, if so, would they make Americans safer? Experts say the bills would fix some problems but wouldn’t be silver bullets. “While both bills are improvements—and people may argue about that—it doesn’t create a system where we’re going to be able to efficiently get the answers about risks of all the chemicals out there,” says David Konisky, an associate professor of public policy at Indiana University Bloomington’s School of Public and Environmental Affairs.
Many political observers, stakeholders and lawmakers, blame the lack of proper chemical oversight on the Toxic Substances Control Act, or TSCA—a 1976 law that allows the EPA to regulate industrial chemicals. Under the TSCA, the EPA can’t require a company to generate new toxicity data for a chemical unless the agency already has evidence that it may be harmful—a classic catch-22. And to ban a chemical, the EPA must prove that its risks to human health and the environment are “unreasonable” relative to the costs of regulating it.
This law is so weak, critics say, that an EPA effort to ban asbestos—a class of fibrous minerals known to cause the deadly lung cancer mesothelioma—got struck down by a federal court in 1991 because the agency had failed to comply with another TSCA mandate that the agency pick the “least burdensome” way of regulating a substance. Some states like California have taken their own actions on toxic substances, prompting even the chemicals industry to call for “modernizing” TSCA to create a more nationally consistent system of rules.
With TSCA’s 40th birthday on the horizon, however, both chambers of Congress are mulling TSCA reform bills that, for the first time, carry strong bipartisan support. This summer, on a nearly unanimous vote from both parties, the House of Representatives approved the so-called TSCA Modernization Act, sponsored by GOP Representative John Shimkus (Ill.). The Senate may also soon vote on a far more sweeping bill, co-sponsored by Democrat Tom Udall of New Mexico and Louisiana Republican David Vitter.
Despite having different scopes, both would allow the EPA to acquire more toxicity data on chemicals, to place restrictions on harmful chemicals and to release more chemical data publicly. The bills’ detractors, particularly in the environmentalist community, suggest that they range from being too weak to doing more harm than good. But the measures’ endorsers, including in the industry, say that this may be the best opportunity for Congress to fix a broken law and that both bills provide measures that would make genuine fixes to TSCA. Both would bar EPA from considering costs in assessing whether a chemical is an “unreasonable” risk. “It allows them to make what should be a risk-based decision as opposed to one where they’re balancing safety with economic impact,” Konisky says.
The EPA also wouldn’t have to pick the “least burdensome” method of regulating a chemical anymore, says Lynn Bergeson, a lawyer in Washington, D.C., whose firm, Bergeson & Campbell, specializes in environmental and chemical issues.
Experts also lauded provisions in both bills that would require the EPA to go the extra mile with its regulations to protect infants, pregnant women and other people who are especially vulnerable to chemicals. And both bills would also make it more difficult for chemical makers to shield chemical information such as its name and formula from the public. EPA would also enjoy new powers to share certain confidential information with states, tribes and health care professionals, helping them respond to disasters and treat patients. “If you can’t tell the state what it is or where it is, there’s nothing they can do,” says Lynn Goldman, a pediatrician who ran the EPA’s toxic chemicals program under Pres. Bill Clinton.
The Senate bill would go further with boosting public disclosure of chemical data, Goldman suggests. And on the whole, she and Bergeson argue, the Senate bill would improve TSCA more than would the House bill. For instance, the Senate bill also would let the EPA order companies to generate new toxicity data—fixing the current law’s infamous catch-22—in far more cases than the House’s bill would. “It’s hard to prove anything without information,” says Goldman, now dean of The George Washington University’s School of Public Health. And under the Senate’s, but not the House’s, bill the EPA would have to publicly decide whether a chemical could enter the marketplace; right now, a new chemical can enter commerce by default unless EPA steps in to block it.
Not everyone agrees that the Senate version would be the better of the two, however. The Senate language contains controversial provisions, decried by most environmental groups, that would take some powers away from the states. For example, the Senate legislation would bar states from regulating a substance more rigorously than the EPA does. Other environmental laws like the Clean Air Act set the federal level of regulation as a minimum, not a maximum, for the states, says Rena Steinzor, a law professor at the University of Maryland.
The Senate bill also would block states from taking future actions on any application or use of a chemical that the EPA has declared to be a “high priority” for review, even before the agency decides whether to actually regulate it. The House bill would block states from issuing new rules for a chemical only after the EPA could actually finalize a regulation for it. The Senate bill’s framework could create a void where nobody could regulate a known danger until the EPA finished a lengthy, politically fraught review process, Steinzor says. Bergeson suggests, however, that the Senate bill’s preemption of states would have limited impact. Not only have states banned only a small number of chemicals, but both bills would let states’ existing chemical laws stay on the books. The Senate bill would also allow states to ask the EPA for permission to regulate a priority chemical while it is under review by the agency, although the request could lead to protracted legal challenges.
Taken as wholes, both the House and Senate bills would still serve as steps forward, Steinzor suggests, albeit modest ones. “I’d rather wait for something that really fixed the problem,” says Steinzor, who is concerned that the bills wouldn’t give much more funding to an EPA that has seen its budget stagnate. These tight budgets could make it tough for the EPA to carry out the bills’ requirements. Nor would the bills quickly dent the list of thousands of unreviewed chemicals currently on the market—the House bill would require that the EPA conduct just 10 reviews a year, the Senate bill just 25.
One additional concern some experts raise is that the bills leave some matters vague: For example, neither bill defines what an “unreasonable” risk would actually mean besides barring the EPA from factoring in regulation costs, says Adam Finkel, a professor of environmental health at the University of Michigan School of Public Health. “That’s a pretty weird formulation,” he says, given that right now regulation costs are key to determining whether a chemical’s risk is unreasonable. He suggests that under either bill, EPA would face a delicate decision on how many additional deaths or cases of disease a chemical could cause before its risk became unreasonable.
So although both bills would improve the TSCA, “there shouldn’t be an illusion created by either of the reform efforts that we are going to have a clear sort of safety assessment that is done for the tens of thousands of chemicals in the marketplace,” Konisky says. None of this will matter, of course, if neither bill becomes law: Both chambers would have to negotiate and then approve a new measure that resolves differences between their respective bills. And the partisan politics that have helped gridlock Congress in recent years as well as the ongoing battle over who will become the new House speaker could bring this burgeoning bipartisan effort to a halt. “We’ve come a long way, but there’s still a good part of the way to go to get to a law,” Konisky adds.