The Washington PostDemocracy Dies in Darkness

The bizarre way the U.S. regulates chemicals — letting them on the market first, then maybe studying them

A Dow Chemical Co. plant in Torrance, Calif. Dow, the largest U.S. chemical maker, is among those companies that would face tougher oversight of their products’ environmental safety if Congress were to reform the Toxic Substances Control Act. (David McNew/Getty Images)

UPDATE: This post has been updated to include further details about the Vitter-Udall bill, and clarifies the details of the cost determinations the proposes. 

Chemicals are everywhere — we’re made of them, and so are the products we use and the objects we come into contact with. Naturally, some of these substances could be bad for our health, perhaps capable of causing cancer and other diseases.

Regulators have presumably barred unsafe chemicals from being made and used, right? Not so. In fact, only a tiny percentage of chemicals are regulated.

How could this be? A major reason is that the Toxic Substances Control Act (TSCA), a 1976 law that protects humans and the environment from toxic industrial chemicals (pesticides, drugs and cosmetics are handled under different laws), has created so many hoops for regulators to jump through that it has often rendered them powerless. That’s one rationale that the Government Accountability Office, Congress’s nonpartisan watchdog arm, has cited in repeatedly calling toxic chemicals regulation one of the government’s “high-risk” programs.

Now, a bipartisan bill from Sens. David Vitter (R-La.) and Tom Udall (D-N.M.), introduced last week, would overhaul TSCA’s core provisions for the first time since its birth nearly 40 years ago.

Here’s the problem: Congress has tried repeatedly to fix this issue and failed. It’s tough to get all stakeholders involved — including chemical companies and environmental and health groups — to find a middle ground. And in today’s gridlock-marred age of toxic politics, not even a bipartisan toxics law reform bill such as Udall-Vitter is guaranteed to survive.

Taking TSCA to task

So, what’s wrong with the current law? For starters, TSCA allowed all 62,000 chemicals that were in commerce before 1976, the year it became law, to stay on the market unless the Environmental Protection Agency later found that they posed an “unreasonable risk.” How many of these has the EPA studied since then? Just a couple of hundred. How many has it banned? Only five, among them dioxins and hexavalent chromium.

Any chemicals after 1976, meanwhile, could enter the market unless the EPA could establish this “unreasonable risk.” The problem: The agency has only 90 days to make that decision, and rarely does it have all the toxicity data it needs. As a result, nearly all substances the industry wants to make and sell are allowed to go on the market.

And to make matters worse, environmentalists have argued that this “unreasonable risk” standard, as defined now, has proved too tough a bar for EPA to meet. Why? Because EPA has to consider the costs of regulation in deciding what makes the risk “unreasonable.” In 1991, a judge struck down the agency’s ban on asbestos — fibrous minerals that are known to cause the deadly lung cancer mesothelioma — in part because the agency hadn’t fully considered the costs of banning it. Since that ruling, the EPA hasn’t successfully used its TSCA ban powers.

Other aspects of TSCA simply make the EPA’s life even tougher. For instance, it can’t require companies to test substances unless the agency shows that there might be a risk to begin with. If it sounds like a chicken-and-egg problem, that’s because it is.

It’s little wonder, then, that our toxics law is so ineffective. So why haven’t we fixed it? The answer lies in how we would do so. For so many of the law’s problems, consensus has been hard to come by. Key among these issues is something known as the safety standard: the minimum bar for safety a substance must meet.

Can we find some chemistry here?

Some, particularly in the environmental/health community, want our chemical laws to look more like the European Union’s. There, substances generally can’t go on the market unless manufacturers can provide data showing they’re safe. The E.U. places much more trust in the precautionary principle, the idea that in the absence of evidence, it’s better not to take any chances.

But don’t expect the United States to go with an E.U.-like safety standard. Past efforts by the late Sen. Frank Lautenberg (D-N.J.) to enact legislation with that kind of standard failed, in large part because of industry opposition. These concerns might not be totally unjustified — reasonable people can disagree about how precautionary we should be before we become too precautionary.

But a bill that doesn’t go far enough won’t get enough support from public-interest groups and Democrats. One bipartisan measure from Lautenberg and Vitter last Congress used the far weaker “unreasonable risk” standard that TSCA currently has, with a few tweaks. Environmental and health groups opposed it for that and other reasons. That bill also died.

A reasonable middle ground?

Now, the Vitter-Udall bill, seeking to strike a middle ground, keeps the standard that requires proof that there’s no “unreasonable risk” that a product is harmful, but changes specific aspects of that standard. Under the bill, chemical makers would now generally need to show their substances meet this standard for them to enter commerce — and couldn’t go on the market by default after 90 days. And no longer would the EPA have to consider costs in deciding whether a substance’s risk is unreasonable and pick the least costly solution — the very issue that doomed the asbestos ban.

The EPA also would face deadlines for assessing and regulating chemicals already on the market, starting first with 25 substances the agency thinks pose the highest threat. And unlike today, EPA could require companies to do additional testing of a chemical without first having to show that it might be risky. At least on the surface, all this seems to add up to a tougher system than what we have now.

But once again, a familiar problem has emerged: To some, this middle-ground solution may not be so good. Nearly all environmental and health groups — the lone exception being the Environmental Defense Fund — and liberal Democrats such as Sen. Barbara Boxer (Calif.) are opposing Vitter-Udall, saying it could be worse than current law. They worry that it wouldn’t require EPA to act quickly enough or review enough chemicals, all while blocking states from enacting future restrictions on substances the EPA designates as “high priority.” To them, that’s a recipe for disaster.

A lot is at stake here. For one, a number of substances may cause cancer, a reason the President’s Cancer Panel in 2010 called for reforming TSCA. Other potential health problems are at stake, too, including birth defects and neurological and developmental problems. And the current laws haven’t given people much confidence in the industry. If there’s something that chemical makers and environmental/health groups agree on, it’s that TSCA needs fixing.

But as TSCA reform’s futile history has shown us, sometimes even the problems we agree on the most can’t be fixed so easily — because it’s much tougher to agree on the solutions.