Pollution standards and laws governing toxic chemicals are set by a patchwork of legislation at both the federal and state level. Here is a quick overview of some of the more important ones:

The Toxic Substances Control Act

The primary piece of legislation that controls chemical regulation in the U.S. is the Toxic Substances Control Act of 1976. It’s what lays out the guidelines for chemical safety and procedures for the regulation of toxic substances. Unfortunately, it’s a piece of legislation that is “badly broken,” says Richard Denison, senior scientist with the Environmental Defense Fund. The Toxic Substances Control Act hasn’t been meaningfully updated in 40 years, and it suffers from a number of serious flaws:

A) It was based on scientific guidelines that are now out of date. Science has progressed quite a bit in the last 40 years, and we now understand a lot more about how chemical toxins can harm human health or the environment. Yet the guidelines were written based on the limited knowledge lawmakers had at the time. They also didn’t take into account recent developments in the chemical industry. Which means the science used to craft the law is now antiquated. As stated by Greg Loarie, a staff attorney for Earth Justice: “They’re using 20th-century methodologies to test 21st century pesticides. The EPA still doesn’t appreciate the extent to which systemic pesticides are different.” (Morris, 2015, p. 55)

B) The legislation works retroactively, requiring companies to test chemicals believed to pose a health risk ONLY AFTER there is explicit evidence of harm, as opposed to testing chemicals to ensure they are safe before going into use. This means that a harmful chemical might be in use for decades before its harmful effects are discovered, and even longer before it’s eventually restricted in any way. Only around 15% of such chemicals have been submitted with health and safety data, and the EPA is virtually powerless to require such data.

C) The law does not explicitly allow protection agencies the power to reevaluate chemicals in light of new information – such as the concerns that have recently been raised about bisphenol-A (BPA)..

D) The law explicitly allowed chemicals already in use before the law passed (more than 60,000 at the time, BPA among them) to continue normal use without any evaluation for toxicity or exposure limits.

E) Amazingly, the law allows companies to claim confidentiality about a new chemical, which pretty well eliminates the possibility for outside evaluations. It’s a lot harder to make safety assessments on a particular chemical when nobody actually knows what it is. Around 95% of all new submissions are shrouded in this veil of secrecy.

F) Even when it becomes clear that a chemical is harmful, legal hurdles set up by the law can make it difficult for agencies to act, and it’s virtually impossible to ban a chemical. For example, despite the fact that the dangers of asbestos are well-known, the law is so toothless that federal courts have overturned all of the EPA’s attempts to restrict the manufacture of asbestos. (Local building laws and other ordinances restrict its use, but companies are still allowed to manufacture it.)

Amendments to the Toxic Substances Control Act (TSCA)

In 2016, President Obama signed into law the first revisions to the Toxic Substances Control Act since its creation. These changes included clauses that….

• Make it easier for the EPA to evaluate chemicals and regulate those it deems to be hazardous.
• Eliminates the cost-of-life calculations that had assigned a monetary value to human life and had made this a mandatory consideration when calculating a chemical’s hazards. (The EPA was forced to balance this “life cost” versus the chemical’s economic benefits.)
• Tightens the time deadlines for evaluating chemicals.
• Imposes greater scrutiny of the confidentiality claims that companies often use to hide the properties of their chemicals.
• Requires that companies report substances made or used in the last 10 years as active substances.
• Allows companies to pay a fee that will designate their chemical for a high-priority review.
• Eliminates the clause that required the EPA to utilize the “least burdensome” approach towards regulation.
• Requires the EPA classify chemicals as either “high-priority substances” that require risk evaluations or “low-priority” and “low-hazard” substances that do not.
• Requires the EPA to review every new chemical or each significant new use for an older chemical in order to determine whether it would pose an unreasonable health risk.

 

It remains to be seen whether these revisions will have any substantive effect on environmental pollution. There are several positives, including the removal of the cost-of-life calculations and the “least burdensome” to industry clause, which had made it all but impossible for the agency to restrict chemicals.

But these revisions are far form perfect. They increase the amount of funding the EPA receives from the chemical industry (via express review fees), which has been something that’s kept the FDA in the pocket of drug companies when it comes to drug approvals. Since the drug companies essentially sign the FDA reviewer’s paychecks, there’s strong incentive for regulators to cater to industry. If a similar situation were to develop within the EPA it would be disastrous.

While it gives the TSCA more teeth, it doesn’t change the testing standards to account for endocrinology or the fact that small amounts of everyday chemicals can add up to substantial harm. Moreover, while it calls on the EPA to provide more oversight, it doesn’t provide the resources or manpower needed for such a feat. So the agency is still in a position of having to play catch-up after the fact. With 90,000+ chemicals and companies doing their own testing, it still leaves the EPA as a rather inept agency.

The EPA also remains highly susceptible to political influences. Since its management is swapped out with every new administration, whether the agency actually acts like an environmental watchdog or is merely a tool for industry interests is largely dependant on who’s installed at the helm. And because these bills tend to be largely written by lobbyists and their lawyers, (the Senate bill was 177 pages of legal jargon), we may not know for several years (or decades) whether these amendments help tighten the spigot on toxic pollution.

Nevertheless, any progress is a step in the right direction, and these amendments at least allow for the possibility of greater oversight. Whether this leads to any practical improvement remains to be seen.

The Food Quality Protection Act (FQPA)

This law was spurred on by public concern over a landmark study led by Philip Landigran, entitled Pesticides in the Diets of Infants & Children, that exposed just how widely spread these chemicals are throughout our food supply. In the wake of a public outcry, Congress passed the Food Quality Protection Act, which marked the first time that pesticide regulation took into account the unique vulnerability of children.

The FQPA requires pesticide makers to conduct a series of six EPA-mandated animal tests on their products following EPA protocols. The goal is to establish a minimal amount of information regarding what effects take place at different toxic exposures. Pesticides are one of the more heavily studied chemicals now, thanks in large part to this legislation.

While the FQPA mandates that companies submit basic safety information prior to approval (the only chemicals required to undergo this testing), it’s done very little to address actual safety concerns, aside from setting loosely followed guidelines on acceptable pesticide residue in food. These chemicals are still found at potentially harmful levels throughout our food supply.

The Clean Water Act

This is the bill that governs pollutants in waterways and drinking water, including allowable chemical residues that occur as a result of water treatment processes. This bill has done a lot to protect our rivers and lakes from unauthorized dumping, and it’s done a good job keeping drinking water reasonably safe, though it by no means stops companies from contaminating tap water on a local basis.

One inadequacy in the clean Water Act is that it doesn’t take into account cumulative exposure. If the permitted lead levels are 5 ppb, then water with 5 ppb of lead is considered safe (a standard many scientists would quarrel with). But if the same water also has 5 ppb arsenic, 3 ppb DEET, 5 ppb atrazine, and so on down the list with the various other 10,000+ contaminants that have been found in tap water, the safety of this water becomes a lot more questionable.

The other knock on the Clean Water Act is that it’s more a series of suggested guidelines than an actual law. Chemical factories and industrial manufacturers have violated the Clean Water Act an estimated half-a-million times just between 2005 and 2010, and this is only the cases we know about. (Gilliom et al., 2006)

The Data Quality Act

This is a law requiring all research used by the government to make policy decisions open and accessible to everyone. On the surface this sounds like a great rule, allowing for transparency in research and policy decisions, something we fully support. The problem is that the way the law is written it creates a lopsided playing field: the science used by regulatory agencies is subject to scrutiny, whereas the studies by industry are not. The intent of the law has been perverted to provide another way for the industry to stall government regulation by attacking the uncertainties that inevitably exist within science. As Philip and Alice Shabecoff state, “it can be and has been used to produce paralysis by analysis. It offers an established procedure for stalling, killing, or altering government documents and decisions.” (2010, p. 171)

How much is your child’s life worth? Get our eBook Toxic Childhood to find out how the government values your family’s health when it comes to chemical regulation.