President Obama signed into law last week sweeping reforms of the outdated Toxic Substances Control Act. Hailed as the most meaningful reform of a major environmental law in a quarter century, the Frank R. Lautenberg Chemical Safety for the 21st Century Act capped a decades long fight to improve public health and safety.
Until now, the Toxic Substances Control Act (TSCA) of 1976 was such a weak regulation that it allowed thousands of untested chemicals to remain in consumer goods without any evidence of safety.
As a result, unworkable mechanisms in the old law benefitted the chemical industry and prevented the EPA from actually banning known toxins. For example, EPA banned asbestos in the late 1980s – only to be overturned by the U.S. 2nd Circuit Court of Appeals in 1991.
“The 2nd Circuit overturning the EPA asbestos ban was the nail in the coffin for the EPA’s ability to issue outright bans of toxic substances under the TSCA,” says Dallas asbestos attorney Ben DuBose. “By 1991, there was long established, world-wide scientific consensus that asbestos was a deadly toxin with no known safe level of exposure,” DuBose stated. “It was one of the tightest causal links for disease in the medical literature. So, if an outright asbestos ban under the old TSCA wouldn’t stick, then good luck enforcing bans of other, less well researched chemicals.”
The Lautenberg Act corrects many of these problems. The new law eliminates the need for the EPA to make a cost benefit analysis to determine where a substance is a toxin or should be banned for health reasons.
“The cost benefit analysis standard was the downfall of the prior asbestos ban. Now that the EPA can make classification decisions based purely on the health risk posed to humans, I imagine we’ll see a new EPA outright ban on asbestos within the next 3 to 4 years,” predicts DuBose.
Other key features of the TSCA amendment include:
- Mandates safety reviews for chemicals in active commerce.
- Requires a safety finding for new chemicals before they can enter the market.
- Replaces TSCA’s burdensome cost-benefit safety standard—which prevented EPA from banning asbestos—with a pure, health-based safety standard.
- Explicitly requires protection of vulnerable populations like children and pregnant women.
- Gives EPA enhanced authority to require testing of both new and existing chemicals.
- Sets aggressive, judicially enforceable deadlines for EPA decisions.
- Makes more information about chemicals available, by limiting companies’ ability to claim information as confidential, and by giving states and health and environmental professionals access to confidential information they need to do their jobs.
All of these improvements in the law should have a meaningful impact on public health. The Lautenberg Act finally succeeded in becoming law with a combination of bi-partisan support as well as industry and environmental group backing.
