Almost as soon as the Toxic Substances Control Act was passed in 1976, the environmental movement began to complain about its shortcomings.
Around the turn of the century, the cacophony grew louder: an old chemical safety law whose main accomplishment (it was said) was never having evaluated or banned anything had no value. Okay, that was perhaps an exaggeration: out of the 85,000 or so chemicals on the market, 200 had been tested by the EPA and 5 had been banned. Example: in 1989, the EPA took steps under TSCA to ban or severely restrict the known carcinogen asbestos. However, before any final regulation was enacted, the 5th Circuit Court overturned the ban as too broad and not sufficiently supported by evidence (although a few paper products containing asbestos were banned.)
The ongoing controversy over reforming or revising TSCA came to a boil a few years ago, when Sen. Frank Lautenberg (D-NJ) decided that enough was enough, and took over the management of getting TSCA reform done. A coalition was formed to promote the passage of what was then called the "Safe Chemicals Act of 2011."
One of the most fervent co-sponsors at the time was Sen. Barbara Boxer (D-CA), who chaired the key Environment and Public Works Committee. Her deeply-ingrained commitment to the cause of chemical safety and environmental protection at all costs was well-known to her colleagues, the press, and the many activist groups whose HQs (or major outposts) are in the Golden State. For example, she solicited testimony on the urgent need for TSCA reform from the "senior scientist" at the Natural Resources Defense Council (NRDC), Dr. Gina Solomon. Dr. Solomon testified about the sad state of our nation's chemical safety testing, and as proof, offered her organization's findings that there were 42 chemical sites in 13 states which had provoked clusters of various illnesses among the nearby residents, including cancer.(1)
Sen. Boxer and politically sympathetic allies of activist groups went full speed ahead on crafting a new TSCA reform with regulatory strictures substantially more draconian than the Lautenberg bill. Needless to say, support from across the aisle was nonexistent and industry was similarly unimpressed — though the New York Times was a big supporter. Those full-page NRDC ads count for a lot.
The more moderate Lautenberg reached across the aisle, working mainly with Sen. David Vitter (R-LA) to craft a more even-handed reform bill. Sadly, Sen. Lautenberg had to retire before his work was completed, and he died of cancer in June of 2013.
Yet with 55 co-sponsors among Republicans and Sheldon Whitehouse (D-RI) and Kirsten Gillibrand (D-NY) crossing the aisle in support, passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act seemed a matter of time. And The House bill, The TSCA Modernization Act, passed in June this year by 398-1. But we still have no reform bill.
Why? Because Sen. Boxer has decided that the new bill is not anti-science enough, and it voids some of the consumer protections that California has. Though she no longer has the clout she had when the Democrats ruled the Senate, she is still firmly aligned with activist groups and can mobilize support against science when needed.
She doesn't want compromise, bipartisan reform of chemical safety if she doesn't get to write it and her main weapon is Proposition 65, the "Safe Drinking Water and Toxic Enforcement Act" of 1986, which states that any substance marketed in the state with any taint of carcinogen based on rodent tests ( banning "at the drop of a rat" as the American Council on Science and Health termed it) must be so labeled. Exposure and levels make no difference, and any bounty hunter lawyer can enforce the act by suing the recalcitrant company and collecting the "damages," which has created a cottage industry of such Prop. 65 specialists, but no discernible benefit to the public health of California's residents.
Public records reveal the lengths Sen. Boxer will go to protect Prop. 65 from TSCA reform. In an article entitled "Boxer, Californians fight parochial tag in reform battle," E&E News found her desperate solicitations to non-California officials to get them to testify against the Lautenberg bill, so as to appear that such opposition is not a private bailiwick of herself and other activists. One Californian (echoing many others in every state) had this perspective on that inane regulation: Anthony Caso, a law professor at Chapman University in Orange, Calif., and a critic of the program, said "We're talking about getting warnings anytime something might cause cancer. On the face of it, that sounds great, but if you see the label on absolutely everything everywhere, it's meaningless."
Mainstream Democrats, most Republicans, certainly business and industry, and rational environmental groups are all hoping for meaningful TSCA reform this year. Opposed is Barbara Boxer and the colleagues she can rally. If the status quo survives, the present patchwork of state (and local) chemical regulations will remain, with some states having essentially no consumer protection.
Given the remote risks of most regulated chemicals, the real poison is uncertainty, which triumphs as the proposed revision is batted around yet again. It must stop. It's a shame to see one stubborn Senator standing in the way of progress, in the name of...what? Sen. Boxer: do not let the perfect be the enemy of the very good.
(1) NRDC is prone to exaggeration and hyperbole so the organization I work at, the American Council on Science and Health, examined their claims about clusters of chemical-induced disease. Our findings are contained here; in summary, there was precious little evidence except for 2 of the 42 sites in question.