Chemical Safety Reform: Some Cautionary Notes

Few would argue that the U.S.'s main law for regulating the safety of industrial chemicals doesn't cry out for an overhaul. The Toxic Substances Control Act (TSCA) was passed in 1976, the year Apple Computer was formed, Jimmy Carter was elected president and gasoline cost (as God intended) $0.59 a gallon. Since then, TSCA has enabled EPA to require the testing of 200 chemicals out of 80,000 registered in the United States. That's the kind of track record that has left consumers believing "chemical safety" is an oxymoron and plaintiff attorneys continuing to order McMansions and Maseratis.

On April 15, Sen. Frank Lautenberg (D-N.J.) introduced the Safe Chemicals Act of 2010 to overhaul TSCA and shift the burden of proof for safety to industry. The bill would require manufacturers to develop and submit a minimum data set for each chemical they produce. EPA can require any additional data needed to determine the safety of a chemical and will have the authority to act quickly to manage risky chemicals and remove them from the market if necessary.

Reaction to the bill has been fairly predictable - a chorus of support from environmental and public health advocates and cautious praise from the American Chemistry Council mixed with a healthy dose of concern that the bill's "proposed decision-making standard may be legally and technically impossible to meet."

James A. Kosch, an attorney with LeClairRyan and an expert on environmental law, calls TSCA "just an antiquated registry law" and points outs that it has not been amended in 34 years "despite massive changes in chemical production and great leaps in our understanding of epidemiology and chemicals testing..."

Kosch says the new testing requirements could help protect American exports from being banned under the European Union's REACH regulations. But he cautions that the law as it now stands could also present risks for companies, including lessening protection for trade secrets, subjecting more chemicals to potential bans from the market and exposing U.S. firms to increased liability engendered by suppliers and trading partners outside the United States with spotty records on chemical safety.

"The Chinese have laws on the books that mirror our safety and intellectual property regulations," says Kosch. "However, uniform enforcement of those laws clearly has been a problem."

EPA Administrator Lisa Jackson said common ground among interested parties makes her optimistic that Congress will put new legislation into place. If it does, it will be interesting to watch how the new law affects public perceptions of the chemical industry and the business fortunes of one of the nation's main exporting industries.