“Safe Until Proven Dangerous”: Reforming the Toxic Substances Control Act

The flaws in the TSCA may finally be remedied through a breakthrough bipartisan bill initiated in the Senate.

Photo courtesy of: lautenberg.senate.gov/

For nearly forty years, the Toxic Substances Control Act (TSCA) has been the primary source of regulation of chemicals used in manufacturing products ranging from baby bottles to furniture to household cleaners.  This year, like in many years’ past, TSCA reformers made the holes in the Act center stage, sponsoring yet another set of aspirational bills with ideals of reform.  These bills – the Safe Chemicals Act of 2013 and the Chemical Safety Improvement Act – were introduced on April 10th and May 22nd, respectively, and have gained bipartisan support defined as groundbreaking by many on both sides of the political aisle.

All that can be done at that point is to require that manufacturers change their practices and to prevent any further damage.

The TSCA (pdf) was initially passed in 1976 with the purpose of ensuring the safety of chemicals used in household products and manufacturing.  Despite its good intentions, the TSCA’s major problem is that it requires the Environmental Protection Agency (EPA) to prove that a chemical is unsafe before it can be taken off the market, making the law a “safe until proven dangerous” catch-22.

Because manufacturers are not required to prove that their chemicals are safe before introducing them into the market, the chemicals must be used by the public before they can be declared unsafe.  By the time potentially dangerous chemicals are proven harmful, exposure to the public and damage to the environment has already occurred.  All that can be done at that point is to require that manufacturers change their practices and to prevent any further damage from the already-introduced chemicals.

There is a significant North Carolina connection to this devastating catch-22, dating back decades.  For thirty-four years, the water systems at Camp Lejeune were contaminated with trichloroethylene (a metal degreaser), perchloroethylene (a dry cleaning agent), and a variety of other dangerous chemicals before being discovered in the early 1980s.  Because of this contamination, many people living at the base were exposed to debilitating diseases and now may be eligible for disability compensation from Veteran’s Affairs.  Even though the chemicals were used for years prior to TSCA enactment, the situation is precisely why TSCA reform is needed.  If the TSCA were in place at the time and required the screening of those chemicals before they were used, rather than permitting their use and then regulating them, this tragic event would likely have been prevented or at least minimized.

Senator Kirsten Gillibrand (D-N.Y.) and the late Frank Lautenberg (D-N.J.) and introduced the Safe Chemicals Act of 2013 (pdf) to combat this problem and to “ensure that all chemicals are evaluated by safety.”  Lautenberg and Gillibrand claim (pdf) that the Act would fix the primary issues with the TSCA and promote four goals to give more teeth to enforcers of environmental law.  The Act aims to: review all chemicals and identify the most dangerous as “high priority” chemicals; determine whether chemicals on the market meet the required safety standards; apply chemical usage restrictions when necessary; and, encourage replacement of dangerous chemicals with safe alternatives.

Despite the seemingly innovative ideas the Act promotes, the bill is identical to the earlier Safe Chemicals Act approved by Democrats in the Senate Environmental and Public Works committee in December 2012, and is very similar to Safe Chemicals Acts of years’ past.

In a national online survey of small business owners, nearly seventy-five percent support TSCA reform.

Two polls and an important endorsement may give the Act a push, however.   In the first poll (pdf), fifty percent of those asked strongly supported TSCA reform, with twenty-seven percent somewhat supporting reform.  As with any statistical poll conducted by a phone questionnaire of registered voters, the results are likely to be skewed depending on a number of factors, including the type of question and who the pollsters targeted (probably based on political affiliation).

The second poll (pdf), sponsored by the American Sustainable Business Council, shows a more interesting and likely more reliable result.   In a national online survey of small business owners, nearly seventy-five percent of respondents supported TSCA reform, and ninety-one percent believed business owners should be held responsible for chemical safety.  While there may be some statistical critique of the sample size or other factors, the high percentages in favor of reform show that some businesses believe chemicals are a problem, regardless of what big manufacturers think.

Perhaps the most important endorsement to the Act comes from the American Academy of Pediatrics.  According to the AAP’s President-Elect, “Pediatricians commend Senators Lautenberg and Gillibrand for introducing the Safe Chemicals Act of 2013, which puts children’s health first and foremost by making needed improvements to current law.”  The AAP points out the vulnerability and susceptibility of children to the harms of chemicals in their formative years, and states that the Act is a “balanced approach” to TSCA reform.

The bill “strikes the right balance between strengthening consumer confidence in the safety of chemicals” while “promoting innovation and the growth of an important sector of our economy.”

In addition to the Safe Chemicals Act, Lautenberg and Louisiana Republican David Vitter partnered to sponsor a bipartisan TSCA reform bill (pdf) known as the Chemical Safety Improvement Act of 2013.  The CSIA includes the Safe Chemicals Act, along with a more manufacturer-friendly take on chemicals reform.  The bill currently has eight Democratic and eight Republican co-sponsors from states across the country.  In a press release, Vitter said that the bill “strikes the right balance between strengthening consumer confidence in the safety of chemicals, while also promoting innovation and the growth of an important sector of our economy.”

The CSIA acknowledges that “public confidence in the Federal chemical regulatory program has diminished over time” but vows to modernize chemical regulations to reflect current technological advancements and research.  The bill would also lessen burdens on commerce and promote development of new chemical substances.

Even though the bipartisan aspect of this bill seems groundbreaking considering the current political climate in Washington, there are ambiguities and points of contention that could create problems.  The bill lacks deadlines for the EPA to declare a chemical “high-priority” or “low-priority,” as well as how the investigation is to be funded to ensure the work is done within a reasonable time.  Also, the bill fails to define an “unreasonable risk” created by certain chemicals used in the industry.

Another hurdle the bill must overcome is Senator Lautenberg’s recent death this week on June 3, 2013.  The bill has lost a crucial advocate, which might diminish potential support from those still on the fence about TSCA reform and ultimately limit the extent of the Safe Chemicals Act portion of the CSIA.  However, the bill may survive in this circumstance because of its bipartisan support.  Nonetheless, Senator Lautenberg will be missed as the driving force behind this legislation, which even his office recognized as a significant achievement in its statement regarding his passing at the age of eighty-nine.

Despite its critics, this bipartisan bill is perhaps one of the most significant signs that TSCA reform is just around the corner, making many hopeful that chemical safety will be improved.

Despite opposition by the industry and some lawmakers, the fact that a bipartisan bill is on the docket is a breakthrough.

The American Cleaning Institute, one of the leaders in the thirty-billion-dollar U.S. cleaning products industry, hopes that the TSCA will be strengthened with “common sense, bipartisan legislation” and will “reassert American leadership on chemical management.”  However, while these bills would be a leap forward in chemicals reform, each has received mixed reviews from other organizations in the industry and among some Republicans.

The president of the American Chemistry Council stated that the EPA should use the enormous amounts of research and technology that already exist to enforce the TSCA as it stands, positing that the new bill would raise costs and that the legislation disadvantages American businesses.

Some Republican lawmakers feel the same way, claiming the EPA already has enough power and should become more effective in enforcing the TSCA and in issuing their regulatory determinations.  In the minority views expressed in the 112th Congress Committee Reports (2011-2012), Republican lawmakers voiced their opinion on the Safe Chemicals Act of 2011, a similar precursor to the current Act.  Republicans described the Act as an “unworkable program” that would probably be “crippling to manufacturing in the United States.”  They went on to state that it was unclear if the Act was “anything more than a fundraising tool for the environmental left,” and that the Act worsens the problem by failing to put an end to state and local attempts at chemical regulation.

Despite opposition by the industry and some lawmakers, the fact that a bipartisan bill is on the docket is a breakthrough that has not happened for many years in the struggle for TSCA reform.  With some clarification and increasing evidence of the need for further regulation, the bill may stand a fighting chance to at least modify antiquated and poorly enforced legislation.

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About Sarah Bowman, Former Associate Editor (9 Articles)
Sarah Bowman served as an Associate Editor for the Campbell Law Observer. She was also the Moot Court Chair for the Old Kivett Advocacy Council and the Vice Dean for Delta Theta Phi Law Fraternity. She is originally from Asheville, North Carolina, and graduated from University of North Carolina Chapel Hill in 2011 with a bachelor’s degree in History and Political Science and a minor in Spanish. Her previous legal employment includes summer internships with the Property Control Section of the N.C. Department of Justice, the Gillett-Stallings Law Office, and a research position as a Webster’s Scholar for Professor Patrick Hetrick. Sarah graduated from Campbell Law School in May 2014.
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