Will The Current Administration Weaken The Toxic Substances Control Act?

Anya Alvarez  |  Contributor

Each year new chemicals enter the environment through new products and manufacturing processes, making it important to understand how these chemicals are determined to be safe for consumers, especially since those chemicals can end up in water supplies.

Back in 1976, when the Toxic Substances Control Act (TSCA) was passed, it aimed at providing rules and regulations for the Environmental Protection Agency to follow when allowing chemicals on the market. It was an illusion that gave people in the United States that the government was doing its due diligence in making sure no unsafe chemicals would enter commerce. What in fact took place under the act might surprise you: more than 60,000 known chemicals already in commerce were grandfathered in. This means these chemicals were exempt from any further review from the EPA, and did not require chemical makers notify the EPA when they manufactured or developed a new chemical.

In addition, it left the EPA with its hands tied when it came to its authority to ban chemicals. The EPA actually bears the responsibility of having to prove a chemical poses an “unreasonable risk.” Because of this, the EPA has only banned 5 chemicals (dioxin, PCBs, chlorofluorocarbons,, asbestos, and chromium 6) since the bill’s passage.

With that in mind though, the EPA also has to consider the financial costs of regulating a chemical. When the EPA tried to ban asbestos, the Fifth Circuit of Court appeals in 1991 overturned the EPA’s ban because it had not considered the the cost of banning it.

Keep in mind with how different the rules and regulations are for countries in the European Union

• Chemicals in the EU cannot go on the market until the company (not the government) proves they are safe
• When there is any absence of evidence that a chemical is safe, the EU does not take chances and instead does not allow the chemical on the market at all

Several bipartisan efforts have taken place in order amend certain parts of the TSCA. In 2015 Sens. David Vitter (R-La.) and Tom Udall (D-N.M.), introduced a bill that would replace the TSCA’s core provisions. Their TSCA reform bill would still not put the burden of proof on companies, but instead would companies show their substances meet standards before they would go on market.

Probably one of more important parts of the bill, though, is that it would no longer require the EPA to consider financial costs if a substance poses an “unreasonable risk,” also requiring the EPA to address 25 substances the agency believes pose a high risk.

Such bills in the past that have tried to overhaul provisions of the TSCA have failed simply because some on one side of the aisle think the government is overstepping its reach. And when the proposed bills have loosened its regulations, environmental and health groups have pushed back saying the bill doesn’t go far enough.

Just last year though, a bipartisan bill, Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576), was passed and signed into law by President Obama.

Under the new law:

• The EPA is required to evaluate existing chemicals, with at least 20 chemicals at a time, under enforceable and clear deadlines. As soon as a review of a chemical is complete, the EPA must begin a new chemical review.
• Chemicals will be evaluated based on potential health risks they pose. The old Toxic Substances Control Act regulations made it incredibly difficult for the EPA to take action, even when a chemical posed a known health threat. Under the new provisions, the EPA will take necessary steps to eliminate any potential risks they find.
• The EPA will now the power to collect up to $25 million a year in user fees from chemical manufacturers and processors, in order to pay their new responsibilities and to make improvements in their ability to limit harmful chemicals on the market.

With the new administration, it will be important for the EPA and legislators to keep a close eye on new appointments and be prepared for any loosening of Toxic Substances Control Act regulations on chemical companies. For most legislators they understand how crucial it is to have give the EPA control in how it regulates chemicals on the market, which is why so many bipartisan efforts have taken place over the last 40 years to give the EPA more control to do so. Let’s hope it stays that way.

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