By Peter Montague
The environmental movement has been campaigning since 2005 to modernize U.S. chemicals policy, an uphill battle. The greens have done everything by the book -- written a model law, built a national grass-roots coalition, and dispatched lobbyists to capitol hill.
Now, however, the chemical industry has executed a classic "divide and conquer" maneuver, cleaving the greens into disarray. If the present momentum continues, Congress could end up passing a chemical reform bill that's far worse than what we've got now.
What we've got now is the Toxic Substances Control Act (TSCA, pronounced Tosca) enacted in 1976 and not revised since. As the New York Times described it May 24, 2013,
"[TSCA] purports to regulate potentially harmful chemicals in industrial and consumer goods, like plastic bottles and children's pajamas. But the law is better known for its failures than for its successes. Of roughly 85,000 chemicals registered for use in the United States, [since 1976] only 200 have been tested by the Environmental Protection Agency [EPA] and fewer than a dozen -- including polychlorinated biphenyls, dioxin and hexavalent chromium -- have been restricted.
"After a federal appeals court denied the E.P.A. the authority to issue new limits on asbestos in 1991 [22 years ago], the agency all but abandoned its efforts to enforce the law, even as evidence of health problems from exposure to a range of chemicals in consumer products has piled up," the Times wrote.
TSCA works like this: New industrial chemicals are presumed to be safe. Ninety days before selling a new chemical, a manufacturer must notify EPA. At that time, the manufacturer must divulge any toxicity data it has for the chemical. If there's no toxicity data, there's nothing to divulge -- a powerful incentive to avoid safety testing. EPA then has 60 days to approve the new chemical or to demand more toxicity data. But EPA's demand for more data must be supported by substantial evidence that new information is warranted by an "unreasonable risk" to public health or the environment. Obviously, this is a catch-22: without evidence of harm (or safety), EPA has no power to demand studies that might show harm (or safety). So every year, on average, 700 new chemicals enter commercial channels untested for effects on human health or the environment. That's TSCA in a nutshell. (For more on U.S. chemicals policy, see here , here, and here .)
A Campaign to Reform U.S. Chemicals Policy
A national campaign to reform TSCA bubbled up from the grassroots where people from Maine to California had been waging trench warfare against the petrochemical industry since 1978 when toxic waste was first discovered oozing onto a school playground at Love Canal in Niagara Falls, N.Y., where kids were getting sick. Nationwide, when people started looking, they found toxic waste everywhere.
Communities like Woburn, Mass. and Toms River, N.J., discovered clusters of disease among their children, and suddenly ordinary people found themselves locked in battle with armies of lawyers representing major corporations -- in Woburn's case, Beatrice Foods and W.R. Grace, and in Toms River's, Ciba-Geigy -- to end the toxic trespass. The Woburn fight was documented in a book and movie, both titled A Civil Action . Dan Fagin documented the Toms River fight in a book by that name. At the height of "the toxics movement" an estimated 7,000 local groups were engaged in hand-to-hand combat with one chemical polluter or another in all 50 states, plus Puerto Rico, Guam and the Virgin Islands.
Along the way, there were state-level victories. For example in 1986, a ballot initiative (" Prop 65 ") forced California state government to list all chemicals known to cause cancer, birth defects, or other reproductive harm. The list gets updated once a year and now contains about 800 chemicals. California businesses must notify their customers about the presence of any of these chemicals in products they sell.
But ultimately town-by-town, fight-by-fight opposition to toxic chemicals wasn't changing national policy. In May, 2004, a disparate group of toxics and environmental justice activists met in Louisville, Ky. to hammer out a " Louisville Charter for Safer Chemicals " -- the Magna Carta of TSCA reform. In 2005 Senator Frank Lautenberg (D-N.J.) began carrying the banner for modern chemicals policy, and a serious national TSCA reform campaign began to take shape. In 2008 Lautenberg introduced his first TSCA-reform proposal, the Kid-Safe Chemicals Act .
Features of Kid-Safe included:
1. Require Basic Data on Industrial Chemicals
Chemical companies must demonstrate the safety of their products, backed up with credible evidence. Chemicals that lack minimum data could not be legally manufactured in or imported into the United States. [Section 505] In other words, no data, no market.
2. Place the Burden on Industry to Demonstrate Safety