When the Toxic Substances Control Act (TSCA) passed in 1976, it was heralded as an equal among the other sweeping environmental laws of the era. The Clean Air Act, Clean Water Act, CERCLA, and the Endangered Species Act are familiar to most Americans—they form the backbone of environmental legislation in the United States. But how many people do you know that can tell you what the acronym TSCA means? Today, over 30 years after the TSCA was passed, the Act is widely regarded as the worst failure of the major environmental laws, having accomplished little to stem the flow of toxic chemicals into commerce and the environment.1 So what happened?
TSCA’s Tasks
To understand the failings of TSCA, it is first necessary to understand the sheer volume of chemicals that fall within the Environmental Protection Agency’s (EPA) purview under the Act. When TSCA passed in 1976, the EPA was tasked with assessing the approximately 62,000 chemicals already existing in commerce.2 Faced with so many chemicals, the EPA elected to have them “grandfathered in.”3 In other words, the agency decided not to take all of these chemicals off of the market in order to test or assess their effects on health or the environment. Since 1976, the agency’s job has only grown more complicated:
- Today, there are over 84,000 chemicals in use;4 700 new chemicals are introduced each year;5
- 42 billion pounds of chemicals are produced or imported each day;6
- The EPA anticipates a 3% growth in chemical production per year;7
- The chemical industry is one of the largest in the US—it is a $689 billion enterprise.8
Given these numbers, it isn’t surprising that the EPA is falling behind. Most Americans assume that all chemicals in use today have been tested and regulated by public agencies, and therefore that they are safe to use. However, these assumptions are not necessarily true. The EPA lacks even basic toxicity information about a large number of chemicals in use today.9
Constraints and Hurdles
Since 1976, the EPA has mandated testing on only 200 chemicals out of the 84,000 that make up the current inventory of chemicals under TSCA.10 Sure, the task required of the EPA is large, but 200 still seems shockingly small. The primary reason why the EPA is falling behind is that TSCA is currently set up so that chemicals are not regulated before they are put on the market, rather that are regulated only after they have already been used and found to be harmful to health or the environment. The burden of proof falls entirely on the EPA, public, and environmental advocacy groups.11 Chemical companies have no responsibility to demonstrate the safety of their products. In fact, according to EPA, 67% of pre-manufacturing notices for new chemicals contain no data on health or environmental impacts!12
Unfortunately, while the EPA continues to lag behind with testing, more and more chemicals are found to be harmful by third parties. The Center for Disease Control released the 3rd Report on Human Exposures to Environmental Chemicals in 2005. The report included a slew of studies indicating that human blood and urine samples contain over 100 chemicals, some of which have been known to act as toxins at low levels.13 The list of chemicals identified in humans is likely to grow as investigators expand the set of tested chemicals. Alas, the more we look, the more we find.
If the EPA’s record for testing chemicals under TSCA seems unsatisfactory, consider its abysmal record for actually banning chemicals. In the 35 years since TSCA was passed, the EPA has banned or partially restricted the use of only five chemicals. These chemicals include PCBs, chlorofluorocarbons, dioxin, asbestos, and hexavalent chromium.15 And technically, the asbestos ruling was overturned and PCBs were actually banned by Congress, the EPA just enforces the ban.16
Why so few? Well, it’s not for nothing that many toxicologists cringe at the mention of asbestos. The EPA spent ten years making a rule to ban asbestos. That ban was thrown out by a Court of Appeals on the grounds that the EPA had not met the TSCA’s burden of showing that asbestos posed an “unreasonable risk” to human health, or that the EPA had chosen the “least burdensome method” (for businesses) of addressing the problem. The EPA has not taken action on any other chemical in the 18 years since that court decision.17
Consequences
It doesn’t take a rocket scientist to make the connection between thousands of unregulated chemicals and increases in a variety of health impacts. In California alone there are 208,000 new cases of chronic disease per year attributable to workplace chemical exposures, $1.4 billion a year is spent on diseases attributable to chemical exposures, and 7% of women of reproductive age have blood mercury levels above safe levels.18,19 Throughout the U.S. cancer rates have been increasing. Surely this isn’t just a coincidence. In fact, certain chemicals are known to cause cancer:
- Bladder cancer is linked to aromatic amines.20
- Bladder and rectal cancer are linked to chlorination by-products.21
- Bladder, laryngeal, lung, rectal, and skin cancers are linked to metal working fluids.22
- Mesothelioma and lung cancer are linked to asbestos.23
- Leukemia is linked to benzene.24
Current Calls for reform
If there is any good news to report about one of the most inefficient environmental laws in U.S. history, it’s that reform might be nigh. Lisa P. Jackson, current Administrator at the EPA, is spearheading an initiative to reform TSCA to make it more similar to Europe’s REACH laws.26 The REACH program is implemented in phases: gradually more and more manufacturers and importers are required to gather information on the properties of their chemical substances, which will allow their safe handling. Over the next 11 years, information for all chemicals produced and used in the European Union will be entered into a central database run by the European Chemicals Agency (ECHA).27
Some of the key principles for reforming TSCA include:
- Requiring that all chemicals are evaluated to determine their safety.
- Immediate action on the worst chemicals, specifically persistent and bioaccumulative toxicants (PBTs), which persist in the environment and build up in the food chain and our bodies.28
- Requiring that manufacturers provide information on the health hazards associated with all of their chemicals, how they are used, and the ways that the public or workers could be exposed.
Recent polling data shows that support for comprehensive reform of chemical regulation is very strong, and that it reaches across partisan lines. In fact, one recent national poll indicates that the majority of Democrats, Republicans, and Tea Partiers support TSCA reform.29 The public understands the link between toxic chemicals and the rising levels of chronic disease and believes this is a problem that the government can and should fix with strong measures to protect the public.
