Revising the Toxic Substances Out-of-Control Act

06/29/2015 08:38 am ET | Updated Jun 29, 2016

It is a good thing that America had a bipartisan environmental majority in the 1970s and 1980s or our air today would be unbreathable and our water would be undrinkable. Fortunately, laws governing air and water pollution, solid and hazardous waste, endangered species, and toxic substances were enacted during those crucial decades. Since 1990, however, we have passed no major new environmental laws and, rather than update these laws, we struggle to retrofit them to deal with new environmental challenges. While the Clean Air Act is now being used to regulate greenhouse gases as air pollutants, other environmental laws are unfortunately outdated and cannot handle the new dangers caused by changing technologies. For example, a federal regulatory exemption for small quantities of household hazardous waste has made it difficult to regulate the electronic waste from smart phones and laptops. The most serious gap in regulatory coverage, though, may be in the decades-old (1976) Toxic Substances Control Act.

Last year, a chemical used to process coal leaked into the Elk River--a major source of Charleston, West Virginia's water supply. As a result, people went without tap water for several days. Charleston's water crisis placed the regulation of toxic chemicals back on the political agenda in Washington. In a piece on the latest efforts to modernize America's toxics law, Coral Davenport of the New York Times observed that:

Under the 1976 law, the Environmental Protection Agency is required to evaluate the safety of new chemicals introduced in the marketplace. But the agency was not required to evaluate the roughly 64,000 chemicals already being used in American commerce. Since then, about 22,000 new chemicals have been introduced and evaluated, and those that the agency designates as toxic and hazardous are subject to regulation. But the vast majority of chemicals -- including the one that fouled the Elk River, 4-methylcylcohexane methanol, or MCHM -- are unregulated, and little information about many of them is publicly available. Under current law, even asbestos, a known carcinogen, is exempt from regulation.

Under a very mild new law winding its way through Congress, EPA would be required to review the toxicity of 10 chemicals per year. This is a minuscule, almost absurd number when compared to the 64,000 unregulated chemicals now in use. The chemical industry and its lobbyists support this token effort and it is possible that it will be signed into law this summer.

My pragmatic side wants to say that controlling ten hazards is better than controlling none, but I'm not really sure that is true. Assuming we stop inventing new chemicals, it would take over 6,000 years to test the ones we have already created. Let's compare the process for introducing new chemicals to the one that the Food and Drug Administration requires before new drugs are allowed to be introduced in the United States. The introduction of new drugs must adhere to the precautionary principle. Before we allow drugs to be released for use by the public, we test them in the laboratory, then on animals, and then on humans. In contrast, new chemicals are introduced into use and only controlled if they have been proven to cause harm; many times, even after harm is proven they are allowed to continue. In most cases, we simply do not know if the chemicals are harmful.

Our regulation of toxic substances is based largely on ignorance and is inadequate and idiotic. The costs of testing for harm are not negligible, but are far lower than the cost of paying for toxic clean-up or for the cost of health care for those exposed to poison. The Natural Resources Defense Council's website succinctly summarizes the horrific state of toxics control in the United States:

Under the law now, the EPA must prove a chemical poses an "unreasonable risk" to public health or the environment before it can be regulated. Widely considered a failure, the law allowed 62,000 chemicals to remain on the market without testing when it first passed. In more than 30 years, the EPA has only required testing for about 200 of those chemicals, and has partially regulated just five. The rest have never been fully assessed for toxic impacts on human health and the environment. For the 22,000 chemicals introduced since 1976, chemical manufacturers have provided little or no information to the EPA regarding their potential health or environmental impacts.

The impacts of these toxics on our health are often difficult to measure. We are not always aware of the chemicals we come in contact with or the intensity of our exposure. Interactive effects are also difficult to trace. We learn that our workplaces and homes are more toxic than they once were when we need to renovate them or when a fire takes place. When we renovate a building and discover we need to remove asbestos from the walls, we are in effect undertaking a very expensive toxic clean-up. When fire fighters enter a burning home they are now required to wear breathing apparatuses to protect them from the toxic fumes that are emitted from burning furniture, counters and floor coverings. A half-century ago these building materials were made from organic matter: cotton, wool, wood, metal and stone. Today, we use more and more plastics in our interior finishes and furnishings.

I am not opposed to "better living through chemistry" and I am not looking to buy a wooden iPhone, but I do not understand why the chemical industry does not cooperate in an effort to ensure that the products they sell do not harm people and the planet. An unregulated chemical industry is an invitation for disaster. Fortunately, there is at least one place in America where regulation of toxic chemicals is taken seriously--California (of course). In 2013, the California Department of Toxic Substances Control began the phased implementation of its Safer Consumer Products Program. This program is designed to:

...reduce toxic chemicals in consumer products, create new business opportunities in the emerging safer consumer products economy, and reduce the burden on consumers and businesses struggling to identify what's in the products they buy for their families and customers. ...By shifting the question of an ingredient's toxicity to the product development stage, concerns can be addressed early on. The approach results in safer ingredients and designs, and provides an opportunity for California industry to once again demonstrate its innovative spirit by making products that meet consumer demand throughout the world.

California's program publishes a list of dangerous chemicals and targets a small number of products containing those chemicals. According to the Center for Public Integrity's Ronnie Greene:

Companies manufacturing those goods in California... launch detailed assessments to see whether safer chemicals are available and, if so, alter their products. The goal: To remove toxic chemicals from commerce and prompt industry to provide safe alternatives.

Greene notes that the American Chemistry Council, the group that has lobbied against federal toxics reform, also lobbied against California's new regulations. California's state government was able to overcome the interest group's efforts and create this modest new effort to regulate toxic chemicals.

California has long represented America's future. Its nearly 39 million people make it the largest state in the union, and it has been a trendsetter--both positive and negative. While it confronts gridlock on its freeways and a historic drought in its water supply, it is also home to Silicon Valley and remains a magnet for people from all over the world. Its environmental policies have long exceeded national requirements and I'm not surprised that it is a pioneer in toxic substances regulation.

On a more crowded planet with a higher level of consumption, we need to learn to use resources more wisely and exercise greater care when we use chemicals that can harm living organisms. The toxics in Charleston's water supply were a warning. If we want to ensure that it does not represent our environmental future, we should take the warning seriously.