The Toxic Substances Control Act (TSCA), which Congress passed in September of 1976, was supposed to give Environmental Protection Agency (EPA) the authority to identify and regulate dangerous chemicals. The law was also supposed to require chemical companies to give Americans the information needed to assess the safety of their products.
The "grandfather" problem
Unfortunately, TSCA "grandfathered in" some 62,000 chemicals in use at the time it was enacted—that is, chemical companies could keep selling them without safety testing. Today, most chemicals on the market are among those original 62,000 and have never been tested.
The "unreasonable risk" problem
TSCA contained another fatal flaw. To regulate a chemical, the law places the burden of proving a chemical is causing harm on EPA, rather than requiring chemical producers to prove their chemicals are safe. In addition, the law requires that EPA prove a chemical presents an "unreasonable risk."
In practice, this standard has been impossible for EPA to meet. The only chemicals banned under TSCA are PCBs (polychlorinated biphenyls), which were widely used in transformers and electrical equipment and that happened only because the ban was written by Congress into the original law.
EPA couldn't even ban asbestos, a known and deadly carcinogen.Tweet This In 1991, a federal Court of Appeals threw out EPA's regulation banning asbestos because, the court said, the agency had failed to show that asbestos posed an unreasonable risk. In the wake of this precedent, EPA never tried to ban a chemical under TSCA again.
The secrecy problem
Under TSCA, chemical companies can label as trade secrets virtually any of the information they submit to EPA about their products. And EPA, the law states, may not share information claimed as secret with the public, with state or local governments, or with the governments of other countries.
The chemical industry is highly competitive, and some protection for research and trade secrets is reasonable. But the chemical industry has exploited this loophole to claim that information about 95% of their new chemicals should be secret. They make the same claim even about many chemicals for which they are required to submit health and safety data.
EPA can challenge these claims. But TSCA says they must be contested on a case-by-case basis, and the agency simply hasn't the resources to examine more than a tiny percentage of the thousands of claims made each year.
The result? The identities of almost 20% of the tens of thousands of chemicals in commercial use in the United States—from flame retardants to laundry detergent additives—are kept secret from consumers, scientists and government regulators. And even health and safety information, which under TSCA is supposed to be ineligible for trade secret protection, is routinely claimed by companies to be confidential, rendering the information inaccessible to the public.