Congress Must Do More to Ensure Chemical Safety

By Steve Owens

Think back to 1976. Gerald Ford was president, Apple Computer was a startup, loud ties and sideburns were in, and Congress passed the Toxic Substances Control Act (TSCA), the first federal law regulating the production and use of chemicals.

A lot has changed in the last 37 years, but TSCA has not. The original language has never been updated to reflect new technological developments -- and TSCA is the only major federal environmental statute that has gone neglected for this long.

When TSCA became law, it grandfathered in roughly 62,000 chemicals without any evaluation of their safety. And when it comes to new chemicals, TSCA does not require EPA to conduct safety assessments or make safety determinations; the agency is left to decide when to conduct these investigations, for which it has limited resources, and it must demonstrate a product is unsafe before it can take further action. Today there are nearly 85,000 entries on EPA's list of chemicals in commerce, but under TSCA, EPA has been able to require testing on only a few hundred and has significantly limited or banned only five.

In light of TSCA's problems, some states have begun to pass their own laws to regulate and ban chemicals. Having served as the head of EPA's chemical-safety office during President Obama's first term, and as a state environmental agency director before that, I know firsthand the frustrations and concerns that have led some states to act.

For years, state environmental chiefs have been among those urging Congress to update TSCA. But partisan gridlock has kept that from happening, leaving Americans questioning whether the chemicals their children and families are exposed to are truly safe.

In May, a bipartisan group of senators introduced the Chemical Safety Improvement Act (CSIA), a breakthrough bill that provides a real opportunity to reform TSCA and make federal chemical regulation more effective. States that want to protect their citizens from unreasonable chemical risks should welcome this important legislation.

First, the vast majority of states do not have the resources to regulate chemicals, especially as state budgets have been slashed in recent years. If the CSIA is passed, states will be able to focus their limited resources on other critical responsibilities, such as protecting air and water quality, instead of doing the job of the federal government by regulating chemicals.

Second, if the CSIA passes, states will not have to grapple with the highly technical and difficult task of assessing thousands of chemicals for safety. Chemical assessments require highly trained experts whom states typically do not have on hand.

Third, unlike TSCA, the CSIA gives states a say about which chemicals will get priority attention from EPA. Under the CSIA, states can petition EPA to put chemicals of concern on a "high priority" list for safety reviews, and EPA must respond within six months.

Fourth, unlike TSCA, the CSIA allows EPA to share critical confidential information about chemicals with the states.

Finally, and most important, the CSIA requires EPA to determine whether chemicals in the marketplace, including the chemicals previously grandfathered in, are in fact safe when used as intended -- and if they are not, to take action. This means that all Americans, not just those who live in the relatively few states that are trying to regulate chemicals, can feel confident that their children and families are being protected from unreasonable chemical risks.

Some have criticized the CSIA because it would preempt various state efforts. But the simple fact is that TSCA was supposed to do the same thing -- the only reason the existing preemption language hasn't had more of an effect is that EPA has been unable to take meaningful action on chemicals. Moreover, the CSIA gives states the right to obtain waivers from EPA to allow their rules and laws to remain in effect under certain circumstances, and the bill's sponsors have pledged to make changes in the bill to address other concerns about the legislation's preemptive effect.

The bottom line is that if the CSIA becomes law, EPA will be acting to regulate the tens of thousands of chemicals in use today, doing the job that the American people expect it to do.

Steve Owens served as the EPA's assistant administrator, Office of Chemical Safety and Pollution Prevention, during President Obama's first term. Prior to his work at the EPA, Owens served as Arizona's director of environmental quality.

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