Updating the Toxic Substances Control Act (TSCA): Q&A with Daniel Rosenberg
Recently, the professional organization of pediatricians, the American Academy of Pediatrics (AAP), issued a strong policy statement calling for better protection of children and pregnant women from hazardous chemicals, as Sarah Janssen reported on Switchboard. Key to this effort is a push to reform The Toxic Substances Control Act (TSCA), which hasn't been updated since it was enacted 35 years ago and has failed to protect Americans from chemicals in consumer goods. The Safer Chemicals, Healthy Families coalition, of which NRDC is a member, is updating “The Health Case for Reforming the Toxic Substances Control Act,” a report on the potential health and economic benefits to be gained by long-overdue updates to TSCA. To get more details about the act, the report and what reform might mean for the public, Smarter Living spoke to Daniel Rosenberg, senior attorney at NRDC.
Q: Quickly, what is TSCA and why does it need to be reformed?
Daniel Rosenberg: TSCA is an environmental law first enacted in 1976 and never updated since, that was intended to regulate the safety of industrial chemicals—that is most chemicals that find their way into the stream of commerce. It is generally regarded to be the greatest failure of all the major environmental laws passed in the early 1970s. This is because there were 62,000 chemicals in use when it was enacted and all of those chemicals were grandfathered in, meaning they didn’t have to be tested or required to meet a safety standard.
On top of that, the law makes it extremely difficult for EPA to take action even when they know a chemical is unsafe, like asbestos. The way the law is written, the burden is on the agency to prove a chemical is unsafe rather than the companies who make chemicals having to prove they are safe.
Some 22,000 chemicals have come onto the market since 1976, and for those new chemicals EPA’s ability to regulate them is also very limited. The companies did not supply information on the health or environmental effects of most of these chemicals, because they aren’t required to do so. To get that information about any chemical, EPA would have to issue a test rule, which is a cumbersome, expensive, and lengthy process.
So, roughly 84,000 chemicals are allowed on the market without evidence that they are safe and for a number of them, we know they are not safe.
Q: During the Last Congress, there were several hearings about TSCA reform, and legislation introduced in the House and Senate. Where do things stand with the new Congress?
DR: NRDC is an active member of a broad campaign to reform TSCA called Safer Chemical Healthy Families. It includes a number of environmental groups as well as health-affected, healthcare, community and state groups. There were quite a few hearings on TSCA in the last Congress, in both the House and Senate, probably more than the total number of hearings on TSCA since it was first enacted. In addition, strong reform bills were introduced in the House and Senate, which NRDC and the whole coalition supported. But, they were introduced fairly late in the Congress, and time ran out to move forward with those bills.
This year, the Senate Environment Committee has already had one hearing on TSCA, where our President Frances Beinecke was one of the invited witnesses. And Senator Lautenberg of New Jersey has just introduced a revised version of his bill, the Safe Chemicals Act, which we support. We hope that bill will be the subject of additional hearings and move forward towards a vote by the full Senate.
We think it is important for every member of Congress to be on record as to whether they support TSCA reform. In the House, the new leadership has indicated that TSCA reform is not a priority, and some have questioned whether it is necessary at all. We think that is a serious error. We hope that perhaps the paper released by the American Academy of Pediatrics will help move the House leaders to reconsider their position.
Q: Given high asthma rates and incidents of early puberty in African American communities, for example, socioeconomic risk factors are also very important. Is environmental justice an element in TSCA reform?
DR: In our view, TSCA should be a place to address some of the problems for communities that are disproportionately exposed, and therefore vulnerable, to toxic substances. One of the platforms of our campaign is that “effective reform should contribute substantially to reducing the disproportionate burden of toxic chemical exposure placed on people of color, low-income people and indigenous communities.” That’s not a traditional part of existing TSCA but we think that’s an important concept that should exist in any reform.
Of the now 84,000 chemicals, EPA has taken action to partially regulate only five of those chemicals. The only chemical that was ever banned under TSCA is PCBs, which Congress passed as part of the original law. Of course, PCBs are still around, since they are so persistent, leaking from various places where they are still in use, polluting rivers and triggering fish consumption advisories. PCBs are routinely found in people’s bodies when they are biomonitored, even though their production was banned 35 years ago. There are dozens of other persistent and bioaccumulative toxic substances that have not been adequately regulated under TSCA (lead and mercury are two that are well known).
There are a number of other chemicals that we know are dangerous and that people are widely exposed to—for example, formaldehyde, asbestos, and solvents like TCE—and those are commonly found in a lot of disadvantaged communities. So another plank of our platform is that these persistent, bioaccumualtive and toxic substances (PBTs) that people are exposed to should be phased out of use and new ones kept from entering the market. Exposure to other toxic chemicals, including carcinogens like formaldehyde, that have already been extensively studied, should be reduced to the maximum extent feasible.
Q: How can the public support TSCA reform?
DR: One of the most important things people can do is pick up their phone or pen or mouse or portable texting device (not while driving) and communicate with their members of congress and state officials that this is an issue that you care about and you want to see reform.
The statute has done almost nothing and hasn’t done nearly what the Clean Air and Clean Water acts have done, so most members of congress know very little about this law and how broken it is, although they do understand that there are a lot of people concerned about exposures to toxic substances. Perhaps they have family members or friends who have cancer, or have a learning disability, or have wrestled with infertility or other reproductive problems, all of which have been associated to some degree to exposure to toxic chemicals. So they need to hear from their constituents and have a clear sense that those issues resonate with the public and that people want the law to be reformed and the lack of proper regulation of toxic chemicals to be addressed.
Although the law has been on the books for so long—35 years—in many respects this is still a new issue for members of congress. It really is important for people to communicate with their Senators and Representatives. Even one call or letter makes a difference, and if hundreds or thousands of people wrote, called, or emailed, it would become impossible to ignore. Every member of congress would benefit from hearing more about this issue and the public’s concern.
Q: The health report that you are updating points out health effects associated with certain chemicals, including cancer, reproductive problems or harming the brain. If we can’t substitute these compounds with healthier versions, what can we do?
DR: For many of these substances, we think safer alternatives do exist. However, part of the way TSCA is broken is that, because all this bad stuff has been allowed to be used forever, there is no federal force really driving innovation and development of safer chemicals. So once there’s a law in place that’s going to phase out the use of chemicals that don’t meet a standard of safety, there’s going to be a drive for innovation that’s beneficial for the companies that can create the most effective but safe chemicals or non-chemical alternatives.
Another element of the platform is to get a minimum set of information -- sort of a basic safety profile -- about each of the chemicals. Not only will it help us find the chemicals that pose health or environmental risks, it will also help us identify some chemicals that are safe. We may have the safer alternatives already. You’re trying to sort the enormous haystack into two smaller piles, the unsafe and the safe.
Q: Out of the 84,000 chemicals that have been produced, how many have even kept their names trade secret?
DR: This is another area where TSCA hasn’t worked well. There is legitimate confidential business information, known as CBI, but in our view the name or identify of the chemical should not be CBI, and certainly not permanently.
But the problem is now that many companies submit all the information including the name as CBI since they rarely are called upon by EPA to justify the claim up front. EPA frequently doesn’t challenge CBI claims because it doesn’t have the time or the money. And currently, CBI claims don’t expire, the information stays secret.
Of the 84,000 chemicals listed in the TSCA inventory, the identity of 17,000 of them is claimed to be CBI, so the public has no idea what they are. Over the past couple of years, EPA has taken steps to improve the system, with the authority it currently has under TSCA, but there definitely needs to be more reform of the process for determining what information is legitimately CBI and what is not.
Besides EPA not having enough information about these chemicals, the public doesn’t either. People do not know what chemicals are in products and there are not currently requirements for companies to disclose much information about their chemicals. That’s a very important reform.
Q: Is there a way to screen for PBTs before they’ve become persistent in a community?
DR: There are characteristics of a chemical that identify them as persistent or bio-accumulative. Effective TSCA reform would ban use of chemicals that are known to have these characteristics. A lot more is known about the persistence and bioaccumulation of toxics than when TSCA was written. There’s also so much greater knowledge now about small doses of certain toxic substances affecting people, the hormone disrupting potentials and cumulative exposures, but the way the law is written none of this new science has had any impact on the way things are done.
Q: What can readers do to reduce their exposures? How can they find out what chemicals are in their homes, water and air, workplaces and schools?
DR: A few companies have taken steps to make more information available about the ingredients of their products, and that increased disclosure is definitely positive. But it isn’t sufficient to really inform the public about what kinds of chemicals they are being exposed to, where, and what their potential effects might be. That requires a more systemic change at the national level. The burden shouldn’t be on the consumers to do a huge investigation to find out what chemicals are coming into their homes. That should all be known up front, that’s what industry should be disclosing to the public.
- Bisphenol A (BPA)
- Hexavalent Chromium
- Methylene chloride (dichloromethane)
- Perchloroethylene (Tetrachloroethylene, PERC, PCE)
- Propoxur (Flea and Tick Pesticide)
- Sulfur Dioxide
- TDCP/TCEP (Chlorinated Flame Retardants)
- Tetrachlorvinphos (Flea and Tick Pesticide)
- Trichloroethylene (TCE)
- Triclosan and Triclocarban (Antibacterials)