Part Two of the “Your Personal Chemical Marinade” Series:

Before further advocating for its reform, lets take a closer look at the current chemicals regulatory framework: the Toxic Substances Control Act (TSCA) of 1976.

In a sense, the TSCA was always a bit behind the game – it was constructed as an inherently reactive rather than proactive policy. The primary reason for this is obvious: tens of thousands of environmental chemicals had already been on the market, in their various forms, prior to it even entering its nascent stages. Largely as a result, members of Congress only found it feasible to establish some sort of general public oversight over the daunting number of chemicals in commerce (Wilson 2006: 15). In formulating TSCA, Congress had three primary policy goals:

• (1) To encourage chemical manufacturers to develop sufficient data regarding “respect to the effect of chemical substances and mixtures on health and the environment.”
• (2) To give the government adequate authority to regulate environmental chemicals that exhibit “an unreasonable risk of injury to health or the environment, and to take action with respect to chemical substances and mixtures which are imminent hazards.”
• (3) To ensure that this expanded government authority over chemical substances only be wielded “in such a manner so as not to impede unduly or create unnecessary economic barriers to technological innovation” (Goldman 2002).

Indeed, the TSCA represented a decisive move in the right direction. Among other things, for the first time it created a government inventory of chemicals in commercial circulation. According to most analysts, however, even these more modest goals are not being fulfilled by the current iteration of TSCA. As early as 1984, the National Academy of Sciences determined that TSCA had “fallen short of its objectives and has not provided an effective vehicle for the public, industry or government to assess the hazards of chemicals in commerce or control those of greatest concern” (Wilson 2006: 16). Since then, a similar conclusion has been reached by the U.S. General Accounting Office (1994), the Congressional Office of Technology Assessment, the NGO Environmental Defense (1997), the EPA (1998), the U.S. Government Accountability Office (2005), and various researchers and former EPA officials (Wilson 2006: 16).

The TSCA’s fundamental weakness primarily stems from two sources: (1) its placement of a nearly-impossible burden of proof on the EPA, and (2) its rigid and unbalanced use of a strict economic criteria, rather than public health and environmental criteria. The first source, the nearly-impossible burden of proof the EPA must satisfy before taking regulatory action, results directly from the TSCA’s language. The TSCA only empowers the EPA to act if it has proven that a certain chemical exhibits an “unreasonable risk of injury to health or the environment.” If the EPA can do this, then, it must then only formulate regulations that are the “least onerous to industry” (Welker-Hood et al. 2007: 9; Wilson 2006: 16). Unfortunately, the EPA’s record at satisfying the evidentiary burden that the phrasing “unreasonable risk” requires is so poor that we cannot even comment in any meaningful way on its success at crafting regulations that that would hold up in federal court as the “least onerous.”

A single anecdote sufficiently illuminates just how irrelevant the TSCA’s language has rendered the EPA when it comes to the regulation of environmental chemicals. Equipped with both a decade-long, $10 million cost-benefit analysis and a well-developed 100,000 page administrative record, in 1989 the EPA attempted to ban asbestos – an environmental chemical that is amongst the most well-understood in terms of its negative impact on human health. In 1991, however, less than two years after the ban had been in place, a federal court overturned it. The ruling was that the TSCA necessitates that the EPA not only prove that a chemical is harmful to human health, but additionally that the regulatory response be the “least burdensome alternative” for mitigating “an unreasonable risk.” In the aftermath of that ruling, the EPA has not yet since attempted to ban an environmental chemical under the auspices of its TSCA authority (Baier-Anderson et al. 2010: p. 7).

Stay tuned for Part Three of the Series.

- Matt