Seven years later, federal toxics law is still protecting the chemical industry’s dirty secrets
Off the Books II: More Secret Chemicals : TSCA
TSCA is the primary federal law regulating toxic chemicals in the United States. It is the only major federal environmental statute that has not undergone significant updates or amendments in the 40 years since.
The law is lengthy and complicated, but broadly its focus is chemical management and safety. TSCA created an inventory of chemicals in commerce and a process for notifying EPA when new chemicals were introduced.
TSCA grandfathered the 60,000 chemicals already in commerce in 1979[i], exempting them from the notification process. For those chemicals, the law gave the EPA authority to collect safety information or require new testing. It also authorized EPA to analyze the existing chemicals for safety and to adopt regulations or ban them as necessary. Other key provisions address trade secret protection, state chemical regulations, penalties and fees.
There is a consensus that TSCA has failed to ensure chemical safety. Although EPA receives notifications for newly introduced chemicals, they often come with little to no safety data and are allowed to go on the market without any safety review or explicit EPA approval. Bureaucratic obstacles make it difficult for EPA to get data on existing chemicals on the market and even harder to regulate them. Of the 60,000 chemicals grandfathered in 1979, EPA has only regulated five chemicals using their authority to protect against unreasonable risk. The law is so ineffective that EPA was stymied when it attempted in 1989 to ban deadly asbestos.
One of the law's greatest weaknesses, as documented by EWG’s 2009 “Off the Books” report, is that chemical companies have wide leeway to keep information about their products secret. With few exceptions, companies can claim that most information about their chemicals is a “trade secret.” There are no minimum requirements for making a trade secret claim, the protection never expires and the information does not have to be shared with state and local authorities. Keeping the information secret makes it harder for the EPA, state and local governments, academic scientists and public health researchers to assess whether chemicals in commerce are safe.
[i] EPA. Toxic Substances Control Act Chemical Substances Inventory: The Initial Chemical Substances Inventory and Reporting for its Revised Edition. Sept. 1979. Available at nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=9101CEFD.TXT