TSCA Reform Seems Inevitable - But Which TSCA Reform?

It's a done deal. Okay, not actually a "done deal." But it seems clear that some sort of TSCA reform is on its way. TSCA, of course, is the Toxic Substances Control Act, which has been the authority for chemical control in the US for over 30 years. Not much has changed since it was passed, and not many of the 63,000 chemicals grandfathered onto the TSCA Inventory have had comprehensive data reviews. New chemicals, on the other hand, all have gone through some review by the EPA, but even here there is no requirement to provide health and safety data so most of the analysis is done by computer modeling and comparison to similar chemicals.

As reported here previously, Senator Lautenberg and Representatives Waxman and Solis introduced the Kid Safe Chemical Act back in 2005 and again in 2008. On both occasions it never got out of committee. Senator Lautenberg is adamant that he will reintroduce it this year. But then what?

In a recent hearing both industry and advocacy groups provided their input in to what TSCA reform should look like. Industry, in particular Cal Dooley of the American Chemistry Council, acknowledged that some sort of TSCA reform is necessary. Environmental groups such as the Environmental Defense Fund agreed that a change is needed. But the agreement stops there.

There are two main options on the table, with lots of options in between. One option is to reintroduce the Kid Safe Act, which would be a radical departure from the current TSCA law, and a bit too close to the European REACH program for industry's tastes. Some environmental groups, e.g., the Environmental Working Group, are in favor of the Kid Safe Act approach. Industry favors something that tweaks the current authority incumbent in TSCA but perhaps not assertively used enough in the past by EPA. EPA itself seems to be leaning in favor of TSCA reform that looks much like its current ChAMP program. Industry generally agrees with that idea.

The difference of opinion is largely one of who has the onus. With the current TSCA and ChAMP, the EPA has the onus of determining that a chemical is not safe, something that has been hard to do given the lack of data available for most chemicals. With the Kid Safe Act and other REACH-like options, the burden shifts almost entirely to industry to prove their chemicals are safe enough to remain (if already existing) or be put (if new) on the market. There are advantages and disadvantages of each approach, which I will examine in coming posts.