Decades of Delay: TSCA Turns 35 -- Chemical Industry Still Stifles Protection from Toxic Chemicals
If you accepted much of the hysterical rhetoric you hear in Washington and from many politicians around the country, a key part of the solution to the nation’s economic ills would be – in essence – to shut down the Environmental Protection Agency and prevent it from issuing anymore “job-killing” and/or “innovation stifling” regulations. In many if not most instances, what the posturing politicians and industry-funded lobbyists dismiss as “job killing regulations” are actually life-saving health standards that protect us from air pollution and water pollution -- the same standards that industry has opposed and dismissed for decades, in good economic times and bad. While the more extreme (or honest) of the EPA-haters flat out call for abolishing the agency, the more “moderate” members of the club use polite terms like “regulatory reform” which amounts to the same thing.
The industries that have always fought the laws that give EPA the power to regulate business and control pollution -- chemical, oil, coal, mining, etc. -- are sensing one of the periodic waves in which they hope to achieve their perennial dream of neutering the agency forever, irregardless of the public’s unwavering support for EPA and its mission. The perception that such an opportunity exists is due in no small part to the White House, which repeatedly has been solicitous, toward the polluting industries.
It remains to be seen whether the industry will actually accomplish much of its permanent agenda during the next year or three. But industry is playing at so many levels that it doesn’t need to rely solely upon these kinds of “golden opportunities.” These industries have years of experience preventing EPA and other agencies from carrying out their mission, or, even if they cannot ultimately be stopped, delaying agency action for as long as possible, which can sometimes be decades.
An excellent example of this phenomenon is the way the chemical industry has prevented EPA from completing or updating health assessments of some of the most widely used toxic chemicals in the country – well-known poisons like arsenic, formaldehyde and hex chrome, and some of their less well-known cousins such as TCE, styrene and tetrachloroethylene. Today NRDC is releasing a report: “The Delay Game: How the Chemical Industry Ducks Regulation of the Most Toxic Substances” a case-study of how the chemical industry has stymied government action to protect the public from exposure to toxic chemicals. My colleague Jennifer Sass has written more in her blog today about the Delay Game, and how the chemical industry has played it to perfection to thwart EPA from issuing health assessments under the IRIS program. Health assessments conducted by the IRIS program are not regulations, but they are used by other EPA programs to set safety standards for air emissions, drinking water, and for clean-up of contaminated soil, for example at Superfund sites.
It has been relatively easy for the chemical industry to repeatedly delay and derail these health assessments, because there is no mandatory enforceable deadline for EPA to complete them and no consequences to industry if the assessments are not completed. All the incentives run toward preventing the EPA from issuing “bad news” – i.e. findings that a chemical is more harmful, or harmful at lower levels of exposure than previously thought. One of the major reasons why EPA has had to rely so heavily on the IRIS program for assessments of chemicals is that the law that was actually intended for the assessment and regulation of chemicals – the Toxic Substances Control Act (TSCA) -- has been almost a total failure. TSCA turned 35 last week (October 11th) and thus far it is most well-known for being the least effective of the major federal environmental statutes. The problems with TSCA are many, but some of the most important are that the law “grandfathered”62,000 chemicals that were in commerce when the law was enacted, without requiring that these chemicals be tested or required to meet a safety standard to remain on the market. The law also set an extremely high bar for EPA to require testing of those chemicals or take any action to regulate them. The bar was raised even higher by a conservative federal court that rejected EPA’s bid to ban most uses of the deadly carcinogen asbestos. As a result EPA has only required testing for roughly 300 of those 62,000 chemicals and has partially, barely, regulated only five. Since the law was enacted, some 22,000 additional chemicals have entered the marketplace. However, due to flaws in TSCA, industry provided no information on the health or environmental impacts of these chemicals when EPA was notified of their intent to manufacture them. These and various other failings are what ultimately led the Government Accountability Office (GAO) in 2009 to designate EPA’s two main programs for assessing and regulating toxic chemicals – the IRIS program and the TSCA program -- as “high risk” for, well, total failure.
Serious efforts to reform TSCA are underway, and Senator Lautenberg has introduced legislation, the Safe Chemicals Act, which would require the chemical industry to disclose sufficient information about their products to allow EPA to assess their safety. The bill would also require EPA to assess most chemicals to ensure their safety. In addition, EPA would have an easier time restricting the use of chemicals – or certain uses of chemicals -- that are unsafe. These are the general outlines of a reformed system that, if well-constructed, could lead to greatly expanded protections of public health and the environment, and a shift toward the use of safer chemicals that has been stymied for decades by a non-functioning law. That’s right; the lack of adequate regulation of the chemical industry has actually stifled innovation. However, for TSCA reform to really work, it is essential that the chemical industry does not have an incentive, or the ability, to prevent EPA from completing “safety assessments” under the law, as it has successfully done under the IRIS program.
To ensure that the process of assessing and regulating chemicals moves forward, a reformed TSCA must establish firm and enforceable deadlines for the EPA to complete its chemical assessments. If EPA fails to meet its deadlines for completing assessment of a chemical, an interim health protective standard should automatically take effect until EPA can complete its assessment. New or expanded uses of the chemical should be stayed or restricted until the assessment is completed. Under a new set of rules, the chemical industry will no longer be able to capitalize on the weaknesses of the law to play the delay game and avoid assessment and regulation of toxic substances.
The Safe Chemicals Act is expected to be marked-up by the Senate Environment and Public Works Committee before the end of the year. That will give the Senate (and then the House) almost all of 2012 to consider and vote on legislation to increase the protection of children and families from exposure to chemicals linked to cancer, learning and developmental disabilities, birth defects and infertility. Decades of industry delay may finally come to an end, and the American public may get the health and environmental protection it has always wanted and deserved.
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