Getting our (toxic substances) act together

August 13, 2013 — Synthetic chemicals permeate every aspect of our lives. Virtually every type of product we use — from personal care products to electronics, food packaging to building materials, clothing to furniture — is likely to contain materials that occur nowhere in nature. While it cannot be assumed that synthetics are hazardous or that naturally occurring substances are safe, we are now exposed to scores of synthetic chemicals throughout our lives. Many of these chemicals are in the food we eat, the water we drink and the air we breathe, both indoors and out. They are in our bodies and those of newborn babies.

To manage these chemicals, a law called the Toxic Substances Control Act was put in place 37 years ago. TSCA was designed to regulate chemicals used commercially, and it has helped reduce use of some particularly hazardous substances. What TSCA does not do, however, is guarantee the safety of chemicals or require that all chemicals be thoroughly tested before they’re put into use. With 84,000 chemicals registered for commerce in the United States, new chemicals being invented daily and growing scientific evidence of chemicals’ effects on human and environmental health, chemical regulation has become a pressing concern.

TSCA has not been updated since President Gerald Ford signed it into law in 1976, and there is now broad agreement that it needs to be revised. But how this should be done is a matter of considerable debate — a debate that is likely to heat up when Congress returns from its summer recess next month.

Along with Sen. David Vitter, R-La., the late senator Frank Lautenberg, D-N.J., introduced the Chemical Safety Improvement Act of 2013. Photo courtesy of Office of Sen. Frank Lautenberg.

In late May of this year, a bill known as the Chemical Safety Improvement Act of 2013 was introduced by the late senator Frank Lautenberg, D-N.J., and Sen. David Vitter, R-La. Its bipartisan backing has been welcomed and it has the support of the chemical industry, but the bill as drafted is opposed by many environmental advocates, state elected officials and other policy makers, and legal scholars because of provisions they fear could weaken existing environmental health protections and omissions they say could harm those most vulnerable to or impacted by chemical pollution.

To get some perspective on this debate as it unfolds in the weeks ahead, and to understand why TSCA matters to all of us, it helps to step back and look at the big picture. TSCA’s history, and its strengths and weaknesses are all key considerations

Life Before TSCA

In 1955, a representative of the DuPont Company prepared a talk for a group of financial professionals that began, “I believe that most of you are familiar with our slogan, ‘Better Things for Better Living – Through Chemistry.’

“Our Company depends on its research program,” he continued, “to provide new and improved products – the ‘Better Things’ of our slogan. We have been proud to publicize the fact that more than 60 percent of our sales in 1950 resulted from products that were unknown, or at least were only laboratory curiosities, as recently as 1930.”

In terms of technological innovation, 1930 is light years ago. But in many ways research done then set the stage for many chemical products that are now virtually ubiquitous. Many of those “laboratory curiosities” have become ingredients used in countless familiar and everyday products. Yet there’s still much we don’t know about these materials, especially when it comes to understanding how they can affect the environment and living organisms.

“We should no longer be limited to repairing damage after it has been done; nor should we continue to allow the entire environment to be used as a laboratory.” – Council on Environmental Quality report published in 1971.

For most of the 20th century, chemists creating new molecules and materials focused almost entirely on whether their inventions would work and how practical they would be to produce rather than on potential environmental or health impacts. But as manufactured materials and their industrial production proliferated, the pollution left in their wake could no longer be ignored. Publication in 1962 of Rachel Carson’s Silent Spring amid growing concern about air and water pollution radically changed the public’s perception of chemistry. The outcry the book prompted is widely credited with giving rise to the modern environmental movement.

Pollution prevention had been partially addressed by some earlier laws, but it wasn’t until establishment of the U.S. Environmental Protection Agency in 1970 and passage of the Clean Air Act in 1970 and Clean Water Act in 1972 that the federal government really began to make industry account for hazardous chemical pollution. There were laws to regulate pharmaceuticals, food additives and pesticides — but not other chemicals. So in 1969, the Council on Environmental Quality, newly created by the just-passed National Environmental Protection Act, undertook a study of the potential environmental and human health effects of metals and synthetic organic chemicals.

“The environmental effects of most of the substances discussed in this report are not well understood,” concluded the CEQ report, which was published in 1971. “Testing has largely been confined to their acute effects, and knowledge of the chronic, long-term effects, such as genetic mutation, is inadequate. Although far from complete, available data indicate the potential or actual danger of a number of these substances.”

“The Council’s study indicates the high-priority need for a program of testing and control of toxic substances,” the CEQ announced upon the study’s release. “We should no longer be limited to repairing damage after it has been done; nor should we continue to allow the entire environment to be used as a laboratory.”

The 60,000+ Chemical Question

That CEQ report became the basis of TSCA. Passed in September 1976, the act gave the EPA the authority to oversee the introduction of new chemicals and to require reporting, record keeping and certain testing of these chemicals. It also included specific provisions restricting the use of some substances, among them lead-based paint and polychlorinated biphenyls. These provisions and TSCA’s reporting requirements are credited with helping to reduce the use of some particularly hazardous substances.

However, the act also contains what many observers — both at the time of the bill’s introduction and now — consider significant compromises toward the goals of “testing and control” and scientific understanding of chemicals outlined by the 1971 CEQ report. It is these perceived flaws and others that have emerged, particularly as science has advanced our understanding of chemicals’ biological activity and our ability to detect chemicals in the environment, that the current TSCA reform bill is intended to correct.

Among TSCA’s problematic provisions are those that allow certain chemical information to be protected as trade secrets. Chemical manufacturers say this is essential to preserve competitive advantages, but environmental advocates say it withholds potentially important environmental health information. TSCA’s trade secrets provisions also influence what chemical information state governments, health professionals and emergency responders have access to — an element of the law that has become controversial and that many observers hope reform legislation will address.

The fact is that while it might be assumed that the federal government tests chemical products to determine their safety before they go on the market, it does not.

But perhaps the most obvious of TSCA’s limitations is that chemical manufacturers are only required to submit information about production, use, exposure and environmental fate to the EPA for new chemicals introduced after the law’s enactment. TSCA does not require toxicity testing of new chemicals being submitted to the EPA for registration, but it does ask manufacturers to voluntarily provide the EPA with existing health and environmental effects data. (TSCA also allows the EPA to ask for additional information if certain criteria are met.)

“No mandatory testing was a huge compromise,” says Rena Steinzor, University of Maryland School of Law professor and president of the Center for Progressive Reform.

The fact is that while it might be assumed that the federal government tests chemical products to determine their safety before they go on the market, it does not. TSCA requires that EPA review the safety of new chemicals and it can limit their use if it determines they pose “an unreasonable risk” to human health and the environment. But no mandated review applies to the 60,000-plus chemicals in production when TSCA was enacted. “Sixty-thousand chemicals were essentially presumed to be safe,” says Environmental Defense Fund senior scientist Richard Denison. “This is a problem that remains today, as these are the majority of chemicals now on the market.” According to the EPA, most of the chemicals produced at high volume currently lack a full set of basic testing data.

Environmental and health advocates point to this grandfathering of more than 60,000 chemicals without toxicity testing as a potential threat to public health. They note that only 200 of these chemicals have been tested for safety. These omissions, along with TSCA’s trade secret protections, have resulted in the “law’s inability to protect the health of the American public from exposure to harmful chemicals,” contends Safer Chemicals, Healthy Families, a coalition of dozens of nonprofits located across the country.

The CSIA as drafted asks the EPA to prioritize new and existing chemicals for assessment but the bill does not set any deadlines or establish any specific testing requirements, both of which environmental advocates say is needed.

Key to understanding how TSCA became the law it is today, explains Steinzor, is recognizing that the legislation originated in a Congressional committee focused on commerce rather than on environmental or health issues. The result, she says, was a law that has never had environmental enforcement power comparable to that of the Clean Air Act or Clean Water Act. For congressional champions of environmental protection at the time, she says, it was “like having a dinner set without forks.”

When the bill was passed, industry considered mandatory pre-manufacture testing to be a potential impediment to business. Environmental advocates considered such testing essential to public and environmental health protection.

The debate continues today. Testifying at a U.S. House Energy and Commerce Committee hearing on TSCA on behalf of the American Chemistry Council last month, ACC board chair Craig Morrison credited the law’s existing provisions with facilitating the marketing of new chemicals. The U.S. system is often contrasted with the chemical regulation law now in place in the European Union. Known as REACH(Registration, Evaluation, Authorisation and Restriction of Chemicals), the law requires manufacturers to submit a full set of chemical toxicity data to the European Chemical Authority. “Under REACH, if there’s no data, there’s no market,” says California Department of Toxic Substances Control director Debbie Raphael. Chemical industry representatives have described this system as burdensome and a potential threat to innovation. “Three times as many new chemicals are produced in the U.S. as in the EU,” says ACC vice president of communications Anne Kolton.

Accelerated Exposure

While the number of different chemicals produced has grown since 1976 – about 2,000 new chemicals are introduced into commerce annually in the U.S. — what has grown even more, explains Denison, is the volume. With chemical production volume doubling roughly every 25 years, there is, says Denison, “a hugely greater diversity of products containing those chemicals. When considering potential environmental and human health impacts of chemical exposure, this is extremely important.

As Denison notes, among the results of this accelerated chemical production are “more synthetics in fabrics and the replacement of wood and glass with synthetics.” This means that we are now in almost constant contact with synthetic chemicals. Many of the chemicals that go into countless products include those that were grandfathered into the TSCA inventory without toxicity testing data. This has made it very difficult for the EPA to address potential hazards of chemicals that go “out the door in the form of products,” says Denison.

TSCA also makes it challenging for the EPA to restrict use of chemicals found to be hazardous after they are on the market. In order to require testing of a chemical already in use, evidence of harm must be demonstrated by whoever claims that harm has occurred. “This,” says Raphael, “set a very high bar for EPA to take action.” Denison calls it “impossibly high.”

Advances in the science of biomonitoring and increasingly sensitive detection methods show that industrial chemical exposure has become virtually ubiquitous — and is not limited to industrial settings or proximity to industrial waste.

As an example, both Denison and Steinzor point to the EPA’s attempt to ban asbestos with a rule issued in 1989. In a 1991 case, known as Corrosion Proof Fittings v. EPA, the U.S. Court of Appeals, 5th Circuit, sided with asbestos manufacturers who pointed to TSCA’s requirement that substantial evidence of risk be proved and that the EPA use the “least burdensome” regulation to reduce risk.

“Asbestos has become the poster child,” Raphael says, for how hard TSCA makes it to completely prohibit a chemical’s use.

“TSCA never talked about intrinsic hazard,” explains University of Massachusetts Lowell associate professor of community health and sustainability Joel Tickner, who directs the Lowell Center for Sustainable Production. In other words, TSCA looks at how a chemical’s use may pose an environmental or health risk rather than at the inherent toxicity of the chemical product. This allows hazardous substances to be used if risk of exposure is reduced instead of using hazard reduction or elimination as a safety strategy.

Growing Understanding

Another reason TSCA so badly needs an update is that our understanding of chemical hazards and possible sources of exposure has grown enormously since 1976. “Science and technology have changed considerably over the past 40 years. The law is not reflective of that,” says Kolton. “It needs to meet the needs of the 21st century.”

We now know, for example, that many chemicals used in products don’t stay in those products, but can be released and end up in our bodies. Advances in the science of biomonitoring and increasingly sensitive detection methods show that industrial chemical exposure has become virtually ubiquitous — and is not limited to industrial settings or proximity to industrial waste. We also now know that timing as well as level of exposure can play a key role in determining potential health effects and that very low doses of certain chemicals can prompt adverse health effects. And we have learned a vast amount about chemicals that produce often subtle, chronic or slow-to-manifest health effects prompted by hormone disruption, not via the acute health effects on which TSCA focuses.

“Over the years, TSCA became weaker, especially as knowledge about the sensitivity of the endocrine system to slight changes and the overarching influence of the endocrine system [on health] have become accepted,” says Endocrine Disruptor Exchange president Theo Colborn.

What bringing TSCA up to date means to ACC and its chemical industry members and what it means to environmental and health advocates, however, differs considerably.

The ACC supports the CSIA’s focus on regulating chemicals based on controlling risks in those products’ “intended uses.” But environmental health advocates and those who advocate preventing chemical pollution by eliminating hazard say the bill needs to be more protective. Chemical manufacturers want “a streamlined” and less cumbersome chemical approval process, says Kolton. Environmental advocates say greater scrutiny is needed, along with fewer delays in EPA’s chemical assessment process.

TSCA and the States

To address chemical hazards — particularly as posed by chemicals in products — many states have stepped in with legislation to do what TSCA has not: explicitly restrict the use of individual chemicals or require manufacturers to report their use of hazardous chemicals in products. States from California and Washington to Maine and Massachusetts have enacted laws aimed at reducing the use of hazardous chemicals or eliminating them entirely from certain products, particularly those intended for infants and children. In 2013, more than half of all states introduced legislation addressing chemical safety policies. Many cities and counties have taken similar action.

Many states have enacted laws aimed at reducing the use of hazardous chemicals or eliminating them entirely from certain products, particularly those intended for infants and children. Photo ©iStockphoto.com/YsaL.

Many state laws have led the way toward national legislation or significant changes in products, such as the use of formaldehyde in wood products and bisphenol A in baby bottles. Laws including California’s Proposition 65, Massachusetts’ Toxic Use Reduction Act, laws in Maine and Washington that require reporting on hazardous chemical use in children’s products, and numerous laws around the country restricting use of certain chemical flame retardants with recognized health hazards — to name just a few — have, in many cases, been instrumental in promoting the use of safer alternatives.

Raphael and other policy makers — as well as environmental health advocates — are now concerned that the CSIA could erode this progress. As drafted, the bill contains provisions that many believe could significantly expand the EPA’s ability to trump state and local regulations.

Next Steps

So where does TSCA go from here? The Senate Committee on Environment and Public Works held a hearing on the CSIA on July 31. Sen. Dianne Feinstein, D-Calif., attorneys general from 10 states, the California DTSC, 58 state legislators from 25 states, and others have written to the committee expressing opposition to the bill as drafted. The ACC calls the CSIA “a compromise,” but says it will provide the “regulatory certainty” needed to improve business and public confidence in TSCA.

“It is very clear that certain principles must be the centerpiece of any toxic chemical reform bill moving forward,” said Sen. Barbara Boxer, D-Calif., in a statement summarizing the July 31 hearing. Such a bill, she said, must ensure that states are able to act on harmful chemicals, allow victims of hazardous chemical exposure to hold all parties responsible, provide time frames for EPA action on the most dangerous chemicals, and protect our most vulnerable populations, including children. As chair of the Environment and Public Works Committee, Boxer also promised fast action on the bill when Congress reconvenes after Labor Day.

While we still appear to be a long way from closing all the information gaps the CEQ highlighted in 1971, there seems to be ample motivation and considerable momentum afoot to craft a bill that will get us closer.

UPDATED 08.14.13: The paragraph on TSCA’s oversight of new and existing chemicals was updated for clarification.