An Inadequate Law Keeps the EPA's Hands Tied
September 2, 2010
This essay is in response to: What is the key obstacle to implementing an effective, health-protective, chemicals management system?
The most important barrier to health-protective chemicals policy is the existing chemicals management system. That may sound obvious, but what I mean by that is that the statute itself is the biggest problem. In a nation that relies on regulation to manage the potential harm of a profit-oriented society, we are living with the consequences of a failed system that continues to be the law of the land.
Our current policy, the Toxic Substances Control Act (TSCA), requires the EPA to prove harm from a chemical in commerce before taking action. At the same time, in a paradox that would be funny if it weren’t so serious, TSCA has set up a system that makes it virtually impossible for EPA to effectively prove harm.
In the case of new and existing chemicals (chemicals which were “grandfathered” in when TSCA became law) about which there is little safety information, the EPA faces enormous hurdles to obtaining the appropriate safety information. In order to require chemical producers to perform and submit additional information on chemical safety, the EPA must demonstrate that an existing chemical presents “unreasonable risk” of injury to human health or the environment, or is produced in such a high volume that there is potential for a substantial release into the environment and substantial risk for exposure.
This places the burden on the EPA to invest taxpayer money in performing in-depth research on the 80,000-plus chemicals in commerce to determine which ones pose significant harm. They must then hope their research stands up to a court of law demonstrating this “unreasonable risk,” otherwise the agency's request will likely fail before a ruling judge. Thus, the system is rigged to burden communities affected by dangerous chemicals and the EPA to prove harm and danger. Meanwhile, chemical producers are able to pursue wealth unobstructed.
Compounding this problem, the regulatory system safeguards industry under the guise of Confidential Business Information, allowing companies to hide basic information about chemical formulation under claims that sharing such information could harm the bottom line. This very generous Confidential Business Information clause, used aggressively by industry over the past three decades, keeps the public in the dark about the potential risks of a product.
Clearly our nation’s chemical policy is not safeguarding our nation’s health.
In the case of chemicals that are known to cause health problems, EPA also has its hands tied. Legally enshrined in the very law that was intended to protect people is an insurmountable burden of proof required to ban bad actor chemicals. Even with appropriate safety information, it has been impossible for EPA to prove, in a way that can withstand legal action, that a substance is causing harm to health. Asbestos has become the most infamous example of this problem.
In 1989, after 10 years of work and $10 million spent researching the health effects of asbestos, the EPA published a rule that would have eventually banned almost all of the asbestos used in the U.S. But in response to a legal challenge brought by the asbestos industry, the rule was struck down in 1991 by the U.S. Court of Appeals, which ruled that the agency had not met the legal requirements of proof of "unreasonable" harm and that banning did not meet the "least burdensome alternative" for regulation as outlined by TSCA. The statute regulating chemicals in commerce was too weak to allow the EPA to regulate a substance known around the world as a carcinogen – a substance that kills thousands every year. Learning from this painful lesson, the EPA has not used TSCA to ban any other hazardous chemical after the asbestos debacle. Since that time the EPA has metaphorically pushed itself away from the toxics regulatory dinner table and said, “That’s enough for me, Mom!"
Asbestos is still legal to manufacture, import, process, and distribute in U.S. This is a direct result of an inadequate law – TSCA. Asbestos is just one example among many chemicals known to harm health, and many others suspected of harming health. The law that regulates the commercial use of these chemicals, TSCA, is harming the health of Americans, and must be changed.