Periconi, LLC

Environmental Disaster Highlights the Need for TSCA Reform

Love Canal, New York; Cuyahoga River, Ohio; Times Beach, Missouri; Hopewell, Virginia; Three Mile Island, Pennsylvania. These are the sites of some of the worst environmental contamination in our nation's history. Each of these disasters drew significant public attention, and incited the political will to confront similar environmental hazards more systematically.

One program born out this type of environmental attention was the Toxic Substances Control Act ("TSCA") of 1976, designed to give EPA the authority to regulate and restrict the use of chemicals.

Under TSCA, when a new chemical is developed, the manufacturer must alert EPA, which has 90 days in which to review the manufacturer's submission, to perform tests on the chemical, and to determine the best way to regulate it - essentially, to prove whether or not the chemical is unsafe to human health and the environment. Once this 90-day window has closed, if EPA has not issued any restrictions the chemical can be used freely.

However, with hundreds of new chemicals introduced each year, and over 85,000 currently in use, 90 days is not long enough for EPA to adequately assess the effects of any product. TSCA has turned into a mere reporting requirement, often with only scant information provided to EPA by industry.

Further, approximately 64,000 chemicals were already in existence when TSCA was enacted. These were "grandfathered" out of the program, so did not receive even the cursory level of review given to more recent developments. These chemicals were presumed safe; EPA was not given the opportunity to confirm or deny this presumption at any time.

The deficiencies in TSCA have been getting regulatory attention for some time. Just last year two bills were proposed to close its existing data gaps and oversight inefficiencies, the Chemical Safety Improvement Act (May 2013) and the Safe Chemicals Act (April 2013). However, neither bill made it past committee.

Unfortunately, it seems that another environmental disaster was required to catalyze these much-needed reforms. As of this writing, the Charleston, West Virginia area is struggling to recover from a 10,000 gallon spill of MCHM which reached its water supply this January.

So Congress now seems to be paying attention: the House Democrats on the Energy and Commerce Committee held a hearing on February 4, 2014 to discuss the weak and outdated nature of United States chemical control laws, and several Senate Democrats plan to introduce a bill entitled the Chemical Safety and Drinking Water Protection Act. If passed, this act will require frequent site inspections at chemical storage sites, would force industry to create adequate emergency response plans, and would mandate the disclosure of information to nearby public water systems.

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