What should TSCA reform look — and not look — like?

Richard Denison, Ph.D., is a Senior Scientist.

For the past several years, EDF has been in the thick of discussions about whether the Toxic Substances Control Act of 1976 (TSCA) needs reform and, if so, what form it should take.  Happily, the former question has largely been answered:  With only a few remaining holdouts, even the chemical industry acknowledges the time has come.  So now we can move on to what such reform should look like – and what it should not.

Remarkably, it was Cal Dooley, new President of the American Chemistry Council, who perhaps best stated the case for reform in his testimony before a House subcommittee in late February.  Noting that "TSCA is in dire need of modernization," he went on to say that his industry's customers and the public at large have lost confidence in the safety of chemicals and in the government's chemical management system.  Quite a turn-around from ACC's testimony at a Senate hearing just over two years earlier, in which it stated:

"In our view, TSCA is a sound statutory and regulatory system.  It is a robust vehicle that can effectively address emerging chemical issues … The American Chemistry Council believes that the Toxic Substances Control Act provides a high level of health and environmental protection in the manufacture and use of chemical substances."

So now we can ask what TSCA has and has not done and what its reform should strive to do.  Our own critique of TSCA and our vision for what a reformed TSCA looks like have been laid out most recently in two documents:

(For those wanting to go deeper, see my 150-page report Not That Innocent, which provides a detailed comparison of TSCA to the European Union's REACH Regulation and the Canadian Environmental Protection Act.)

Others, of course, have different ideas.

Prioritization, yes – but on what basis?

A steady refrain heard especially from many industry stakeholders is that – given the sheer number of un- or under-assessed chemicals in commerce and their myriad uses – we need to prioritize (see here and here).  I agree – but where we then quickly diverge is on what basis we are to prioritize.  They would have us believe we already know enough to identify and address those relatively few chemicals likely to be problematic, and leave the vast majority alone.

I hold the opposite view:  Given the magnitude of data gaps for most chemicals, and our unfortunate history of failing to anticipate the widespread exposure to and hazards of an ever-growing list of chemicals, the only way we can effectively prioritize is by first developing a solid base of good information on the full range of chemicals in commerce.

Opposition by some in industry to such an approach is ironic, given that they are often the first to sound the alarm that when we restrict use of one problematic chemical, we risk replacing it with something that is no better or perhaps worse – the so-called "regrettable substitution" problem (see here, here and here).

What better way to avoid that dilemma than to take a comprehensive approach to developing data on chemicals?  Not only can such information be used to identify the "bad actors," it can also help us to identify with greater confidence those chemicals that pose little or no concern – and hold potential to serve as safer substitutes for the problematic ones.

Coming next:  I'll take a detailed look at each of several programs being proposed as alternatives to comprehensive TSCA reform:

  • Some stakeholders maintain that two current EPA programs – the New Chemicals Program under which EPA reviews new substances prior to their manufacture, and ChAMP (short for Chemical Assessment and Management Program) under which EPA is reviewing chemicals already in commerce – are working well and either obviate the need for, or at least should be retained in, any legislative reform.
  • A third "model" for chemicals policy reform being pointed to is the Canadian government's Chemicals Management Plan.

It so happens that through my work at EDF, I have become intimately familiar with each of these initiatives.  So I'll examine them one at a time in my next several posts.

Let me say at the outset, however, that while each of these efforts has something to recommend it, none of these models comes even close to providing a reasonable foundation for sound chemicals management, let alone TSCA reform.  That's in large part because they all suffer from the same core drawback:  Each fails to provide a comprehensive approach to developing good information on chemicals, and is instead forced to rely on whatever information already happens to exist on chemicals' hazards, use and exposures, no matter how incomplete or uneven in quality.

So come back soon!

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