Most modern toxic substances control laws are based on the 1976 US Toxic Substances Control Act, 15 U.S.C. §2601 et seq. (TSCA). It provides the US Environmental Protection Agency with authority to require reporting, record-keeping and testing requirements, and restrictions relating to certain kinds of chemical substances and/or mixtures, such as polychlorinated biphenyls (PCBs), asbestos, radon and lead-based paint. Substances already regulated under other statutes, such as food, pharmaceuticals, cosmetics, and pesticides, are excluded from TSCA.
34 years after its initial adoption, TSCA is badly in need of an overhaul. For the last year, US regulators, businesses, and others interested in toxic substances have been developing and negotiating a new version of TSCA. Progress will likely be delayed by the new Republican Congress, but the November 2 elections will not make the issues go away. (Some of these issues are already better regulated in Canada, but in other respects we have even farther to go.)
In April 2010, the Chair of the US Senate Subcommittee on Superfund, Toxics and Environmental Health introduced the Safe Chemicals Act of 2010 (SCA) in the Senate, to overhaul TSCA. Its purpose is to ensure that risks from chemicals are adequately understood and managed, and to protect human health and the environment. In July, a similar Bill, the Toxic Chemicals Safety Act of 2010 (TCSA), was introduced in the House of Representatives.
Both Bills reflect core principles to strengthen U.S. chemical management laws, released last September 29, 2009 by EPA Administrator Lisa Jackson. They are designed to provide better chemical control, because:
- For each chemical they produce, manufacturers would be required to prepare and submit a minimum data set; the Environmental Protection Agency (EPA) would be authorized to require data beyond this to make a safety determination, although there are provisions to prevent unnecessary testing. (At present, US manufacturers are only required to submit such data if they already have it. This has put Canadian manufacturers at a major cost disadvantage.)
- The EPA would be required to use this information to prioritize chemicals by their risk, based on how they will be used, amount produced, toxicity, environmental persistence, bioaccumulation and other properties, and would take expedited action to reduce use of or exposure to chemicals of highest concern. (Canada is trying to do this through our Chemicals Management Plan).
- Chemical manufacturers and users would have the burden of proving their chemicals safe, very different from the current situation where EPA must show harm before it can act.
- So far, EPA has only required testing for 200 of over 80,000 chemicals registered on the US Domestic Substances List, and has only banned 5 dangerous substances.
- (Again, the new TSCA would be more similar to the Canadian New Substances Regulation under the Canadian Environmental Protection Act.)
- It would establish a public database that provides access to reliable information about chemicals; conditions under which an industry can claim data are confidential business information would be narrowed.
- It would promote innovation and incentives for use of green chemistry and less harmful chemicals.
In September 2010, 51 organizations that manage a total of $35 billion in assets wrote to Congress
endorsing the proposed toxic substances reform, to alleviate the drag on the US economy caused by exposure to toxic chemicals, e.g., through costs of increased health problems. The Investor Environmental Health Network and the American Sustainable Business Council reminded politicians that better control of toxics should:
- increase productivity
- reduce health care costs
- decrease business’ overhead in managing toxic chemicals
- promote international competitiveness
- stimulate/reward innovation, and
- decrease risks to companies and shareholders.
The investors also ask Congress to make toxics regulation easier for the regulated community- a message that Canadian regulators also need to hear:
- For chemicals that have been well-studied, in particular those targetted for restriction or elimination in markets like Europe, regulatory action should be fast-tracked;
- More information about the toxicity of chemicals should be publicly available to decrease the research burden on manufacturers and retailers;
- Regulators should include incentives for green chemicals, e.g. expediting approval of less toxic substitutes;
On environmental justice, another area almost ignored in Canada, the investors ask regulators to:
- Include provisions to identify and reduce hazards in “hot spots”, communities (e.g., Mossville, LA) that are particularly affected by toxic chemicals; and
- Set a safety standard to protect vulnerable populations from exposure to low doses of chemicals and mixtures in daily life.
The American Sustainable Business Council notes that the TSCA places significant burdens on users of products that contain toxic chemicals; in particular, the burden is on the users to research product ingredients and identify hazards to health and the environment; must continue using chemicals where no safer alternatives exist; select products without sufficient information concerning toxicity; respond to concerns from the public, which change frequently; possible liability from use of hazardous products; and understand a complex, changing regulatory environment.
A number of stakeholder meetings were held with the EPA and industry
Comparison of TSCA1976 and TCSA2010
In 2006, Canada launched the Chemicals Management Plan, a $300 million effort to better regulate chemicals and reduce use of those chemicals that harm human health and the environment. The Plan includes a class assessment approach for approximately 350 aromatic substances that may degrade and be of concern to human health or the environment. It established the Virtual Elimination List under the Canadian Environmental Protection Act, 1999 (CEPA).
It is also through regional collaboration
GAO. CHEMICAL REGULATION. Options for Enhancing the Effectiveness of the Toxic Substances Control Act: Statement of John Stephenson, Director
Natural Resources and the Environment. February 26 2009
GAO. CHEMICAL REGULATION. Comparison of U.S. and Recently Enacted European Union Approaches to Protect against the Risks of Toxic Chemicals. August 2007
Safe Chemicals Act of 2010. (fulltext)
originally published in Hazmat Magazine.