Article — From the October 2007 issue
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Article — From the October 2007 issue
When TSCA took effect in the late 1970s, the United States was seen as a pioneer of health and environmental regulation. The Environmental Protection Agency had been established only a few years before, and the government had recently set standards for fuel economy, hazardous-waste disposal, and many other factors affecting the country’s air and water quality. Currently, some 42 billion pounds of chemicals are produced in or brought to America each day, but because of TSCA exemptions, fewer than 200 of all the chemicals on the market have ever undergone any serious risk assessments. Among the 62,000 chemicals the act excused from testing or review were thousands of highly toxic substances, such as ethyl benzene, a widely used industrial solvent suspected of being a potent neurotoxin; whole families of synthetic plastics that are potential carcinogens and endocrine disrupters; and numerous other chemicals for which there was little or no information.
The EPA is actually allowed to place restrictions on the chemicals grandfathered onto the market if the substances present an “unreasonable risk to human health.” In order to demonstrate this risk, however, the agency must surmount tremendous legal and administrative obstacles. The EPA is required to weigh the “costs to industry” of any regulation, and it is obliged to impose restrictions that are the “least burdensome” to chemical manufacturers. According to a 2005 Government Accountability Office analysis, the EPA relies too heavily on industry test data when making safety assessments and allows companies to keep critical data from the public through “indiscriminate” claims that information is proprietary. Even for those few new chemicals brought to market after TSCA, the screening record is not reassuring. Ninety days before commercial-scale production of a chemical begins, manufacturers are required to provide the EPA with all exposure and toxicity data. Theoretically, this information enables the agency to determine whether regulatory action is warranted before chemicals hit the market. But according to the EPA’s own figures, 85 percent of the notifications submitted contain no health data.
One result of this industry-friendly screening is that the EPA has banned only five chemicals since its inception in 1970. For a brief time the banned list included a sixth substance: asbestos. In 1989, the EPA prohibited nearly all uses of asbestos, which it classified as a “known carcinogen.” The chemical industry challenged the agency, however, and in 1990 a federal court vacated the ban, asserting that the EPA had neither met TSCA’s requirement that the conclusive dangers of the chemical should exceed its perceived usefulness nor demonstrated that the ban was the “least burdensome alternative” for eliminating the “unreasonable risk” of exposure. The EPA has not acted to ban a chemical since that decision, even though other countries have outlawed asbestos and numerous toxins that are still in use in the United States. (Since 2004, the E.U. has banned entire categories of hazardous chemicals from use in cosmetics, toys, electronics, and other consumer goods.) By making it easier to hang on to old chemicals than to develop new ones, TSCA provides no incentive for manufacturers to create less toxic alternatives. The absence of even minimal toxicity data insulates the industry from the normal supply-demand dynamic of the market; consumers, in other words, have no means of expressing their potential preference for a less toxic substitute.
Chemical companies have spent lavishly to preserve these lax standards. Since 1996, the industry has contributed $47 million to federal election campaigns, and it pays about $30 million each year to lobbyists in Washington. Lynn Goldman, who served as assistant administrator for toxic substances at the EPA from 1993 to 1998, told me that she and her colleagues knew TSCA was largely ineffectual. “There were thousands of chemicals out there, and we didn’t know what they were. We weren’t able to get the data, weren’t able to assess the risks, nothing.” Goldman recalls a party held in Washington to commemorate TSCA’s twentieth anniversary. “Someone from the chemical industry got up to salute TSCA and said, ‘This is the perfect statute. I wish every law could be like TSCA.’”
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