Policy Points: Spilling Light on Poor Toxic Chemicals Regulations

By Bryan McGannon

If you needed a reason to take chemical reform seriously, you got it in the form of the Elk River chemical spill in West Virginia in January. Besides the human cost, which left many communities without running water for days and made residents sick from the chemicals, there were massive business and economic impacts. According to the Center for Business and Economic Research at Marshall University, businesses in the Charleston, W.Va. area lost about $61 million (PDF) in just the first week after the spill.

Or perhaps we can look to North Carolina and the massive spill that dumped nearly 40,000 tons of coal ash into the Dan River on Feb. 2, coating 70 miles of the river with toxic contaminants such as arsenic, mercury and lead.

These accidents shine a spotlight on the potential for damage from poorly regulated toxic chemicals. But, in fact, they only hint at how poor current regulations really are for these chemicals.

Of the 80,000 chemicals currently being produced, the U.S. Environmental Protection Agency has been able to test only 200 — 0.25 percent of the chemicals on the market.

The Toxic Substances Control Act (TSCA) was intended to give the EPA the power to identify and regulate toxic chemicals when it was passed in 1976. The law grandfathered 62,000 chemicals already on the market in 1976, exempting them from regulation. And a 1980s court case rendered the law ineffectual by forcing the EPA into analytical loops to meet the unworkable cost/benefit standard in the law. Unfortunately, the law has not been updated since.

The good news is that there is now broad agreement, even among members of the chemical industry, the government and health and environmental advocates, that TSCA needs to be reformed. The bad news is that there is strong disagreement over how to do so. Two bills have been introduced, the Chemical Safety Improvement Act in the Senate and the Chemicals in Commerce Act in the House of Representatives. Both are unnecessarily complicated and riddled with provisions that would stall or delay effective regulation. The bottom line is that they would not be good for the majority of businesses in this country.

In December of last year, a number of companies, and the American Sustainable Business Council and other business organizations, formed the Companies for Safer Chemicals coalition. The company members include Patagonia, Seventh Generation, Method and Eileen Fisher, and business organizations from the South Carolina Small Business Chamber of Commerce, Sustainable Furnishings Council and Social Venture Network. The coalition represents great diversity, but it is united in the belief that meaningful, comprehensive reform can drive innovation for cleaner and safer products, protect the consumers and communities, and meet growing consumer demand that will in turn foster economic and job growth.

Specifically, these businesses support three main principles as part of any TSCA reform:

• Transparency. The public and businesses should have access to information regarding the safety of the chemicals in the products they use.


• Safety. Federal law should set a minimum acceptable safety requirement, but allow and encourage states to create innovative laws and regulations that further protect human health and the environment.


• Innovation. Chemical management should foster solutions that lead to safer and more sustainable products and technologies not codify the status quo.

It’s clear that the business perspective on TSCA reform is not monolithic. Incumbent industries call for legislation that would end up exempting some chemicals from effective regulation. But a growing number of companies are making the business case for strong, meaningful reform that will lead to safer chemicals and products.

Requiring all chemicals be treated equally will give all manufacturers a level playing field. And as we have seen recently in West Virginia and North Carolina, not taking these steps can have severe adverse effects — not just for communities, but for the businesses and ultimately the state and national economy.

Unfortunately, some members of Congress have proposed changes that would ultimately fail to address these principles. In the case of the House discussion draft introduced by Rep. John Shimkus (R-IL), the legislation calls for the EPA to consider the cost impacts of regulating a substance rather than the hazard caused by the substance. In fact, the cost basis is at the core of the court case that rendered existing law ineffective. This draft is proposing to fix a broken law with the same provision that broke the original law.

Guided by good science, legislation can drive business innovation and success — and protect public health at the same time. That is the kind of TSCA reform we want to see, and the kind we will keep pushing for. If we do not, incidents like the Elk River and Dan River spills will continue, and businesses and communities will continue pay the price.

Image credit: Flickr/The National Guard

Bryan McGannon is Deputy Policy Director for the American Sustainable Business Council. Policy Points is produced by the American Sustainable Business Council. The editor is Richard Eidlin, Director – Public Policy and Business Engagement.