Chemical Safety Improvement Act: A Fix for Toxic Substances Control Act or not? Part II

The United States has enacted a few basic laws that are intended to protect the general population and the environment from harmful effects of toxic substances; that is, chemicals. One of these laws is the Toxic Substance Control Act (TSCA). Since TSCA was signed into law in 1976, the EPA’s authority under TSCA steadily eroded, ultimately failing to ensure chemical safety in the U.S. Around 2005, serious attempts began to reform TSCA and the result is the Chemical Safety Improvement Act (CSIA).

Much fanfare is being made that CSIA is a bipartisan effort. Much less attention is directed to the fact that the legislation is backed by the chemicals industry with enormous outlays.  According to Common Cause, a non-profit advocacy organization based in Washington, D.C., the chemicals industry spent $375 million between 2005-2012 on lobbying (breaks down to over $700,000 for each of the 535 members of Congress).  Since that industry has a huge stake in federal regulation of chemical substances, caution must be taken to consider bias and conflict of interest.  There is much to consider. AMD’s review of CSIA identified areas of concern, several of which will be addressed in this article. Two areas involve issues inherited from TSCA:  presumption of chemical safety and undue concern financial burden upon the chemicals industry. (See part 1 of series).  Two areas involve features new to TSCA:  the handcuffing of any state attempting to enact more protective regulations and the creation of a prohibitive environment for individuals seeking legal recourse for damages.

Beyond the attempt to fix what is wrong with TSCA, the two most disturbing features of CSIA bear the distinctive fingerprint of the chemicals industry.  First, The President of the Environment Working Group (EWG), Kenneth Cook, testified before the Senate Committee on Environment and Public Works in July 2013 that the individual states of the U.S. would be prevented from enacting their own, more protective regulations.  Cloaked in benign language of a preview section called ‘€œFindings, Policy, and Intent,’€ CSIA claims that federal precedence over and elimination of any state’s regulations over toxic substances is ‘€for the purposes of promoting uniform protections through regulation of chemical substances in commerce, to minimize undue burdens on commerce, and to minimize burdens on states.’€  The reality of the CSIA’€™S restrictive nature regarding states’€™ independent regulations is stated deep within the written document in Section 15(a).  For instance, ‘€œNo state . . . may establish or continue to enforce . . . a prohibition or restriction on the manufacture, processing, or distribution in commerce or use of a chemical substance after issuance of a completed safety determination for a chemical substance . . . by the Administrator [EPA].’€ With these words, proactive state regulations such as California’s ‘€œProp 65’€ labeling requirements, Washington state’s restrictions on flame retardants, and Maine’s attempt to eliminate mercury from products become illegal and any attempts to supplement federal law regarding substances that fall under the jurisdiction of TSCA/CSIA must be abandoned.

Second, Mr. Cook testified, the CSIA would prevent individuals from seeking remedies through the legal system.  Although unable to prohibit an individual from filing a lawsuit against chemical companies, the CSIA can seriously hinder the success of a liability claim by allowing a completed safety determination made by the EPA to be admissible as evidence in court.  Today, 10,000 people die every year as a result of the toxicity of asbestos. The CSIA’s approach will ensure that the devastating consequences of the asbestos liability claims that sent hundreds of chemical companies into bankruptcy will not be repeated.  Unfortunately, there is no assurance that the consequences of chemical toxicity on human health will not be repeated.

As for the inherited issues of TSCA to be addressed, the most basic concern is continuance of the presumption of chemical safety. It would seem to be a difficult feat to retain legislation borne of that presumption. It is further of concern that financial pressure from the chemicals industry will be given considerable weight in EPA’s decisions. There is historical evidence for this second concern:  in the early 80s, the Fifth District Court of Appeal handed down a ruling based at least partially on the financial hardship that banning asbestos would create for the chemicals industry.

How does the CSIA address these two problems of TSCA?

1. Presumption of chemical safety.  The CSIA does not alter this basic premise.  The basic burden of proving safety of substances would still lie with the EPA.  As Kenneth Cook, president of the Environmental Working Group (EWG), makes clear in his testimony before the Senate Committee on Environment and Public Works in July 2013:   ‘€œchemical companies would not be compelled to prove their chemicals are safe or even to submit a minimum amount of data to the EPA so it could assess them [the chemical substances].’€  The burden would fall on the EPA to show that these substances were potentially hazardous and sometimes ‘€œwithout enough information to make sound decisions.’€  Consider that in 2010 the EPA Inspector General reported that eighty-five percent of the premanufacture notices submitted to the EPA by chemical companies did not contain any toxicity data.  By the proposed continuation of the rules by CSIA, the apparent right of chemical manufacturers to create and market chemicals of unproven safety would prevail.
2. Financial burden. Unbalanced consideration is given to the chemicals industry’s financial state versus peoples’€™ health and environmental issues. Under CSIA, before the EPA would be allowed to impose any restrictions or limitations on a substance, it must have researched and addressed the following:
   1. Costs and benefits of the proposed regulatory action, as well as the costs and benefits of potential alternative actions,
   2. The costs and benefits of the chemical and alternatives to the chemical,
   3. The availability of feasible alternatives for the chemical, and
   4. Risks posed by alternatives to the chemical

Effectively, the EPA would be forced to take on the research obligations, at the expense of taxpayers, that should belong to the manufacturers.  Chemical companies would not be required to pay fees to relieve taxpayers of the sometimes enormous costs involved with safety testing and alternatives research.  Yet, the chemical manufacturers would accept the profits and benefits of research they had no hand in performing.

AMD has investigated the proposed legislation to ‘€œfix’€ what has been generally accepted as a failed law to protect us from toxic chemicals. This new bill, approved by and lobbied aggressively for by the chemicals industry, has several areas of major concern.  Read more.There are other limitations of TSCA and CSIA that AMD will report on in its next installment:  transparency, new significant use of existing chemicals and protection for vulnerable groups.  Stay tuned.