Forty years: That’s how long it’s been since Congress revised the major law governing the regulation of toxic chemicals. But now, lawmakers are looking to freshen up the Toxic Substances Control Act (TSCA), which gives the Environmental Protection Agency authority to regulate chemicals in the products we buy, like mattresses and plastic toys.
But according to Ken Cook of the Environmental Working Group, industry is likely to be the biggest winner.
LISTEN: “Where the New Toxic Chemical Rules Fall Short”
The Allegheny Front: So why are we seeing an update to this law now?
Ken Cook: Well, environmentalists have wanted to update this law for a long time. To be honest, the reason it’s happening now is because of pressure from industry. Industry officials have said again and again that the public has lost confidence in the safety of toxic industrial chemicals. And one reason, I think, is because these chemicals are showing up in all kinds of everyday products and in the environment. We did a study a few years ago that tested umbilical cord blood and found an average of 200 toxic chemicals, many of them regulated by this TSCA law, that were showing up in babies before they even came into the world. So I think there’s a lot of pressure from industry to try and do something about it. The legislation Congress is considering now is mostly legislation that was written by industry and originated there.
AF: So the U.S. House and Senate have both passed updated versions of this law. What are the changes they’ve made, and what are the differences between the two versions?
KC: Some of the changes that have been made are good. But they’re almost no-brainer good. For example, over the years, people have complained that the Environmental Protection Agency was fundamentally unable to regulate toxic chemicals after the agency—under the first President Bush—lost a court case when it tried to regulate asbestos, whose hazards and health effects are very well-known. The law was so weak that when EPA tried to regulate it, it failed. So what has happened now is that the two bills will enable EPA to take somewhat better regulatory action. They will allow the agency to require companies to submit data whenever the agency has questions about the safety of a chemical. There will be a more robust safety standard. There will be more disclosure of information—we think.
There will also be some preemption of state laws under both bills, and we’re very concerned about that. One of the things that’s happened in the past decade or so is that, as consumers have gotten concerned about chemicals in their products and homes and in their bodies, they’ve gone to state legislatures and said, ‘If EPA is not going to do anything, surely you can do something here in California or Washington state or Maine.’ So there has been a real increase in the number of state laws that attempt to do what the federal government has not been able to. So we have a situation now where there is some slight improvement in a law that is unfortunately the weakest federal environmental protection law on the books.
AF: But I’ve read the Senate bill allows the EPA to make a decision about the safety of new chemicals and doesn’t have to prove there’s an unreasonable risk. Isn’t that a big gain?
KC: In that narrow sense, it’s possibly better than current law. But we won’t really know because the safety standard that’s being used in the Senate bill is one we’ve never used before. We wanted a standard taken from pesticide and FDA law that we thought would be much stronger. It’s known as “reasonable certainty of no harm,” and under that standard, we felt like we had a much better chance of regulating the most toxic chemicals.
AF: And who will pay for the testing of chemicals? Will the burden be on the EPA?
KC: Under either measure, we’re looking at the taxpayer having to lift most of the financial burden to make sure any of the testing is done. There are some fees provided for in the bills, but frankly, the fees are not enough to get the job done. The way we regulate drugs is with some pretty heavy fees on the drug industry under FDA; we were hoping that a much stronger investment would be required from the regulated industry. And then there’s the timeline: Based on EPA’s estimate, there are probably a thousand or so chemicals that deserve to have an expedited review because of health and safety concerns. So we’re looking at something in the range of 50 to 100 years at the pace that’s stipulated in the law before that will happen. We’re very concerned about that, and there will be plenty of ways in which the industry can postpone and slowdown the regulatory process even then.
AF: And what do you think these new bills and this process say about the state of environmental regulation in this country?
KC: Often times, people are shocked to learn that Congress hasn’t passed a major environmental law to protect human health in 20 years. And the reason is that many of the companies that have been regulated over the 70s, 80s and 90s decided to push back against regulation, and particularly environmental regulation. You see it right up through the presidential campaigns now: Lots of money being put into the system in terms of campaign contributions by industry, lobbyists and so forth. And I think we’re at a point now that the public is starting to wake up to the impact of industry pressure. And what is happening, interestingly enough, is a lot of the regulatory action is happening in the private sector. It’s called “regulation by retailer.” This is where companies that are on the front lines facing consumers are basically saying, ‘We’re not going to sell products if consumers don’t accept them.’ So they’re going back up the supply chain, to the chemical companies, saying, ‘We don’t want sippy cups with phthalates in them,’ or ‘We don’t want makeup with BPA.’ All of these kinds of pressures have led the industry to push through Washington legislation that’s to their liking. But it’s not going to make consumers happy. And, in the end, I think it’s going to be opposed by almost everybody in the environmental movement.
Ken Cook is president of the Environmental Working Group.