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Dueling Toxic Substance Control Act Bills could Swing Law’s Efficacy

— April 7, 2015

Two bills have been recently introduced in the Senate in an effort to reform what some legal scholars consider to be one of the weakest regulations on the books. The Toxic Substance Control Act (TSCA) was introduced in 1976, giving the Environmental Protection Agency (EPA) authority to regulate new and existing chemicals. The law, however, has not been updated since. One bill, introduced by Senators David Vitter (R-LA), and Tom Udall (D-NM), wishes to expand EPA authority and eliminate the patchwork of state regulations that currently exist in lieu of the TSCA’s weaknesses. Another bill, introduced by Barbara Boxer (D-CA), and Ed Markey (D-MA), differs in some respects, but most notably, it keeps the state -level regulations and regulators intact, asking instead for increased coordination between officials at multiple levels. Despite the bipartisan support of the Udall-Vitter bill, opponents believe that it would actually create more of a problem by overloading the limited staff and budget of the EPA, while gutting existing safeguards.

Even with the authority given to it by the TSCA, the EPA has been generally fruitless in its attempts to regulate the industry. Since the TSCA’s enacting in 1976, only 250 of the over 84,000 known chemicals have undergone lengthy EPA safety testing, of which can last as long as 7 years. Of those, only 9 chemicals have actually been banned. The most glaring weakness of the TSCA is its inability to regulate and outlaw asbestos due to a swift Appeals Court overturn of an attempted 1989 EPA ban and a general lack of political will to fight the powerful chemical lobby. Over 107,000 people die annually worldwide from asbestos exposure according to the World Health Organization, and 55 countries have banned the compound as of 2014. Nearly a million pounds of asbestos is imported into the U.S. annually, over 80,000 of which went unaccounted for in 2014.

The major difference between the two bills is the concept of pre-emption. 38 states have enacted over 250 separate laws to make up for the lack of teeth of the TSCA and the impractical length of the EPA testing process. Boxer’s state of California is one of the most active state-level regulators, prompting her version of the TSCA legislation. While giving the EPA more authority over the regulatory process, the Vitter-Udall bill would bar state regulators from enforcing EPA policy, even if the violations were identical.

Due to this provision, the bill has drawn bipartisan criticism in addition to its support. One vocal opponent, the National Resources Defense Council claims that it is a ploy to stifle regulation by overloading the EPA. The agency runs on a limited budget and it is often the target of ridicule in some conservative circles. While most in and out of Congress agree that TSCA reform is long overdue, these two acts may have far-differing results. Also, if either bill is passed, it will be interesting to see what kind of political will there is to ultimately fund the law.

Science Blogs – Kim Krisberg

US News and World Report – Alan Neuhauser

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