Earlier this month, revisions to the Toxic Substances Control Act (TSCA) cleared the Senate and now await President Obama's signature. TSCA's failure to provide EPA with meaningful authority to protect Americans from toxic chemicals was widely recognized, yet the path to revising the law was fraught with controversy. The chemical industry and public health and environmental advocates, as well as Democrats and Republicans in Congress, wrangled over a number of bills for years. The resulting legislation represents a compromise, and there are significant shortcomings in this revised approach to regulating toxic substances.
Below are some of the most significant – and troubling – aspects of the law identified by Center for Progressive Reform Member Scholars and staff.
- Preemption of state legislative efforts to regulate chemical while EPA conducts safety assessment: Because TSCA, in its previous form, protected people so poorly, states took an active role in regulating chemicals. Under the reform legislation, states will be preempted from regulating chemicals while EPA is engaged in the review process, which can take up to four years. If EPA declares a chemical unsafe, states can address the substance while the agency determines how to regulate the chemical, after which state regulatory efforts will again be preempted. If states act within 12 months of EPA announcing that it will review a chemical, they can obtain a waiver to implement their own standards.
- Does not provide EPA with enough funding from industry; requires EPA to negotiate with industry to set funding levels: The law limits industry contributions to the lower of 25 percent of costs or $25 million (subject to adjustment three years after enactment). Without funding from Congress, EPA will be unable to perform the thorough evaluations necessary for the large number of chemicals that should be assessed.
- Limited ability to control imported chemicals: This law makes it difficult for EPA to receive notifications that a chemical is coming into the country in an imported product. Think about where your phone, your clothing, and other everyday products come from and what might be in them. That is a big loophole that Congress failed to close.
- Controversial rulemakings: Of the many rules the law requires EPA to develop, two jump out as particularly noteworthy.
- The first is the prioritization rule. The legislation requires EPA to develop a risk-based screening process for determining high- and low-priority substances (i.e., those that should receive immediate risk evaluations and those that should not). EPA is directed to make its determination of high-priority status without regard to costs and to consider any unreasonable risks to vulnerable populations. EPA has only one year to complete this rule.
- The risk assessment rule will also be contentious. The language of the statute requires EPA to develop a rule for its risk assessment process. This may seem innocuous, but it is a potential minefield, especially if the agency decides to take a one-size-fits-all approach. The rule opens up the possibility of judicial review for any risk assessment that doesn't conform to whatever rule the agency writes. Inviting judges to second-guess EPA's scientists on matters of chemical risk assessment would undermine the basic principles of expert rulemaking.
- Slow pace of risk evaluations: The legislation sets extremely modest time goals for risk evaluations, mandating that EPA conduct evaluations of 20 chemicals in the first three-and-a-half years. While the European Union's REACH legislation required registration (submission of a basic set of toxicity data) on the full universe of chemicals on the market over an 11-year period (2007-2018), the TSCA revision legislation sets up a century-long timeframe in the United States.
EPA's high-priority "Work Plan" list, which is referenced in the legislation, has over 90 chemicals on it, which will take decades to move through. Estimates vary wildly as to the number of chemicals in commerce, with counts ranging from 7,700 to 85,000. Even if the actual number fell on the lower side of the spectrum, reviewing all those chemicals at the rate of 20 every 3.5 years would take not one but a number of centuries. Moreover, the legislation gives industry a say in identifying half of the chemicals EPA reviews. This provision essentially doubles the length of time in which the agency reviews chemicals.
- Protection of status quo: With this new legislation, very little will change in the next five to 10 years. While some new chemicals will be subject to review, all the substances in commerce – recent ones and those grandfathered in 40 years ago – will remain in commerce. People will continue to be exposed to those chemicals, toxic or not, until EPA gets around to reviewing them. As we calculate above, it will take a terribly long time for EPA to review these chemicals, and that's without litigation on particular substances. If there are challenges in court, the timeline is even worse. It seems that only for a small number of brand "new" substances will there be any change in protection for the public.
- Failure to fully eliminate "cost" from EPA decision to regulate chemicals: As the chemical industry has been more than happy to point out, this legislation expressly prohibits EPA from considering "costs" when the agency determines prioritizations. However, costs come into play when EPA attempts to regulate a chemical. The law requires the agency to publish a statement that considers the rule's effect "on the national economy, small business, technological innovation, the environment, and public health;" and "the costs and benefits of the proposed and final regulatory action and of the 1 or more primary alternative regulatory actions," as well as "the cost effectiveness." In the context of a significant rulemaking, EPA would be required to submit this same information to the White House Office of Information and Regulatory Affairs (OIRA) under Executive Order 12866. However, the inclusion of the cost-benefit language in the text of the legislation itself could set the stage for more significant court challenges to EPA's cost-benefit calculations.
We'll be keeping a close eye on the next stage in the process: rulemaking.