Toxic Substances Control Act of 1976

On February 26, 2009 Congressman Bobby L. Rush from Illinois opened a hearing designed to revisit the Toxic Substances Control Act of 1976, otherwise known as TSCA. His opening statement read in part as follows:

“TSCA was enacted in 1976 and originally consisted of one title, which remains the heart of the statute. While Congress, over the years, has added additional titles to TSCA addressing individual chemicals and substances, Congress has done very little with regard to Title I. TSCA and Title I have never been reauthorized or reformed, and very little oversight has been conducted on the statute’s effectiveness. Today, I hope to start a deliberative process that reverses this Congressional inaction of the past. By most accounts, TSCA is badly in need of reform. While opinions may vary on the degree and nature of the reforms needed, there is a broad consensus among a diversity of stakeholders that TSCA needs to be reexamined.

The scope of TSCA is very broad, and its intent is ambitious. TSCA is meant to provide adequate data on the potential health and environmental risks of all chemical substances and mixtures in the United States. Furthermore, the statute is supposed to provide EPA with adequate regulatory tools to protect the public from unreasonable risk of injury to health or the environment. Unfortunately, the statute has seemingly been a failure on both of these basic policy goals.”

It was learned from the hearing that over 80,000 chemicals are currently on the books and over 700 are added each year. The Environmental Protection Agency, the EPA, has the authority to force companies to test their products for safety. The problem is twofold. What the agency must do to exercise their authority under the guidelines of TSCA have proven to be too burdensome. The rules take years to finalize, the costs are excessive and there just are too many legal loopholes for companies who do not wish to comply. Here are some results over 34 years.

  • After 10 years of study and 45,000 pages of documentation, the known carcinogen Asbestos, that kills over 8,000 people per year, has not been banned by the EPA under TSCA, because the Fifth Circuit Court of Appeals threw out the EPA’s entire regulation to ban asbestos because the EPA did not meet its burden of proof that asbestos is an “unreasonable risk” to the public as defined by TSCA;

  • since 1991 the EPA has not banned a single substance under TSCA;

  • in 34 years only five chemicals have been banned;

  • 80% of chemicals submitted to the EPA are approved within 3 weeks

Something must be done. The system is broken and it cannot be allowed to continue as more and more people are exposed to toxic substances daily. The system cannot allow environmental interests to interfere with business, but on the other hand, business cannot be allowed to continue to bring to market products that are known to be harmful to consumers. There has to be controllable governance of this health issue.

There were two panels at the hearing: one representing the environment and consumers and one representing industry. One of the more interesting points of discussion was when the chairman, Congressman Rush, asked this question of each individual on each panel and asked for a simple yes or no answer: do you believe that TSCA needs to be reformed? The answer from each individual on each panel was yes.

I have listed each member of the two panels, their current titles, and a summary of their beliefs regarding TSCA.

John Stephenson, Director of Natural Resources and the Environment

In summary, his opening statement focused on the following:

  • TSCA is very cumbersome to manage as it takes the EPA 2 to 10 years to meet the requirements of TSCA;

  • from the EPA’s point of view the evidentiary requirements under TSCA are too burdensome;

  • the confidentiality requirements under TSCA prevent the EPA from divulging potentially damaging intelligence to the public, unlike the European Union that has greater authority to acknowledge these potentially hazardous materials and make the information public.

J. Clarence Davies, Senior Advisor to the Project on Emerging Nanotechnologies at the Woodrow Wilson International Center for Scholars and a Senior Fellow at Resources for the Future.

  • Acknowledged that one of TSCA’s strengths is that it allows the EPA to control risks;

  • the EPA must show that elimination of existing chemicals is less burdensome than if the chemicals are allowed;

  • without knowledge and data indicating the chemical to be a hazard or risk, the EPA must presume no risk (in other words the burden of proof of risk is placed directly on the shoulders of the EPA when it should be placed on the companies using the chemicals)

  • Mr. Davies also pointed out the confidentiality issue.

Maureen H. Swanson, Healthy Children Project Coordinator Learning Disabilities Association of America (LDA);

  • her work focuses on raising awareness of toxic chemicals that can harm brain development;

  • the organization looks for ways to prevent exposure to toxic chemicals especially among pregnant women as these toxins will find their way into the fetus;

  • their particular concern is with neurotoxins that interfere with brain development and function;

  • LDA is also concerned with chemicals that interfere with the hormonal system with the thyroid gland as it is essential for brain development;

  • one of these chemicals, known as an “endocrine disruptor” is a chemical known as Phthalates found in a high percent of cosmetic products;

  • incidences of neurological disorders is increasing in children, especially for autism, asthma, and attention deficit hyperactivity disorder (ADHD);

  • a January study by scientists at the University of California showed a direct increase in neurological problems linked to exposure to toxic chemicals and called for a national focus on exposure by infants to toxic chemicals in consumer products;

  • the cost to educate a child with learning disabilities is twice the cost of education to a child without;

  • lastly she emphasized that the US needs laws that require manufacturers to prove their ingredients are safe and non-toxic before it can be used in products – before it can put children at risk.

Cecil Corbin-Mark, Deputy Director of Policy Initiatives for Environmental Justice.

Mr. Corbin-Mark testified on how he has been personally impacted by toxic chemicals.

  • his son plays basketball and has Asthma and was impacted by a pesticide smell while visiting a competitors locker room;

  • he also revealed a study released by the New York Public Interest Research Group (NYPIRG) several years ago that documented that the highest use of pesticides in the state occurred New York City;

  • a study by the New York State Department of Health conducted in East Harlem found high levels of PERC, a toxic chemical compound, in apartments where dry cleaners were nearby that can penetrate walls and enter the bloodstream and has been found in mother’s breast milk.

Michael J. Wright, Director of Health, Safety and Environment United Steelworkers

  • Mr. Wright was a member of an international team that traveled to Bhopal, India in 1984 to investigate the release of methyl isocyanate from a Union carbide plant that took the lives of several thousand people and continues to claim victims a quarter of a century later;

  • he wears a lapel pin that shows a canary in a birdcage representing what miners would bring with them when going underground; if the canary lived the air was safe to breathe; today, he said, we are the canaries;

  • he also touched on the European program known as REACH indicating that if we, in America, do not do something to control toxic chemicals, consumers will have more faith and trust in the safety of European products than of those manufactured in the US.

Other members of the panel included Kathy Gerwig, Vice President for Workplace Safety and Environmental Stewardship Officer Kaiser Permanente; Richard A. Denison, Ph. D, Senior Scientist Environmental Defense Fund; Cal Dooley, President of the American Chemistry Council; Jim DeLisi, President of Fanwood Chemical, Inc.; and Charles T. Drevna, President National Petrochemical and Refiners Association.

All had similar stories and experiences about TSCA and the need for change. Probably the most interesting and problematic story came from Dr. Denison. He tells the story of Formaldehyde in plywood imported from China. Formaldehyde is known to cause cancer, exacerbate asthma, and other respiratory ailments, and yet the US imports this plywood. What is most interesting about this story is that Japan will not import it, nor will Europe. In fact, China itself will not allow this plywood to be used in China. Yet the US used the plywood in the FEMA trailers used to help the population of New Orleans after Katrina. Twenty five organizations and 5,000 citizens petitioned the EPA to adopt national legislation banning the importation of this plywood. The EPA denied the request, saying the available information on fFrmaldehyde, one of the most toxic chemicals produced today, was insufficient for the EPA to meet its burden of proof under TSCA.

Dr. Denison went on to say that foremost among its core structural flaws, TSCA:

  • fails to provide EPA the authority to deliver the information needed to identify unsafe .

as well as safer chemicals;

  • forbids EPA from sharing much of the limited information it does obtain;

  • imposes an essentially unmeetable burden on EPA to prove actual harm in order to

control or replace a dangerous chemical; and

  • thereby perpetuates the chemicals industry’s failure to innovate toward inherently safer

chemical and product design.

I could go on and on with more statements and details on this subject. The point in this article on TSCA, the EPA, and in previous articles on the FDA, is that in the past no one was paying any attention to the toxic chemicals being consumed by children and adults on a daily basis. If we do not fix this problem, more and more increases in diseases will surely occur over time. We are putting our children at greater risk. As a result of this timely hearing the following must take place:

  • shift the burden of proof from the Government post market to the industry pre-market;

  • learn the effects of exposure to multiple toxic chemicals versus studying the effects of chemicals one by one;

  • risk models must be studied and changed to accommodate gender, color and age, with particular emphasis on our children who are defenseless;

  • confidentiality needs reform;

  • Nano and Neuro chemicals need study and we must learn what damage they may cause to infants brain development.

TSCA regulates toxic substances across many industries, including the Cosmetic Industry just as the FDA has governance over the food and drug industries and presumably cosmetics as well. We have shown, however, that the Cosmetic Industry is self-regulated and thereby is able to put anything they want on the market without any pretesting. They are also able to say anything they want on their products and packaging simply because no one is watching. Do not accept at face value products that claim to be natural and/or organic.

Toxic ingredients are hazards to our health and finally the US Government is standing up and taking notice. Yet, the way our government works it will take years, if not decades, to enact change. Meanwhile the only way the public can fight back what is happening to us and our children is to avoid all cosmetic products that do not carry the seals and logos of certified organic and/or natural organizations that have been clearly documented in the ebook Organic Skin Care Answers.