Americans expect the government to ensure the safety of the food they eat, the water they drink, the places they work and the products they buy. In my 30-year career as a nonpartisan chemical policy expert — including the past five running the Environmental Protection Agency’s toxics program — I was responsible for ensuring the safety of chemicals in America’s homes, schools and workplaces. Unfortunately, neither I nor my predecessors were able to deliver the chemical safety Americans expect, due to serious limitations in the law we worked under. Fortunately, last year, a Republican-controlled Congress passed, and a Democratic President signed, reform that addressed the major problems with the Toxic Substances Control Act.
Yet now Congress is considering legislation that would replicate those same flaws across the federal government. Congress should heed the lesson it learned last year and avoid remaking the same mistakes.
In a bizarre turn of events, the current Congress is considering legislation known as the Regulatory Accountability Act that would apply the very features of TSCA that made it so unworkable to all federal laws. If passed, the RAA could put myriad health and safety protections at risk.
To understand why, TSCA provides a telling case. The most infamous failing of that law was the inability to ban most uses of asbestos, one of the best understood toxic chemicals known to humankind. Asbestos causes an irreversible deadly disease in individuals exposed to it, mesothelioma. To this day more than 10,000 Americans die from asbestos-related diseases every year. Armed with this scientific evidence the EPA finalized a rule under TSCA in 1989 to ban and phase out nearly all uses of asbestos. Yet, the rule was largely thrown out by the 5th Circuit Court in a ruling that created a bar so high that EPA, over successive administrations, never successfully restricted another existing chemical. In the interim, countries around the world and states in the US began tackling dangerous chemicals while the US government watched helplessly.
What requirements in the old TSCA that made regulation so difficult are now under consideration for inclusion in every health and safety law in the US? Largely, they were requirements that created an endless loop of analysis. The old TSCA required the EPA to identify the least burdensome means to reduce risk. The level of analysis required to identify the least burdensome option is nearly endless: There is always one more option that the Agency or a public commenter can identify. Even worse, the RAA would give agencies a tight time period to perform this work, and if exceeded, the Agency would have to start over. In a nutshell, agencies would be required to analyze more options than are practical and do so within a timeframe that isn’t practical or perhaps even possible.
To envision the consequences, consider the impact the RAA would have had on some of the important public health protections over the past 30 years. In 1977, CPSC banned lead in paint. Lead is a well know neurotoxin that has been demonstrated to reduce the IQ of individuals exposed during their childhood (among other bad things). There are a nearly infinite number of ways to reduce blood lead levels from exposure through paint. Should we reduce the concentration of lead in paint by 100 percent, 99 percent, 95 percent, or less? Under the RAA, even after evaluating all these different scenarios, a commenter could say: “But you didn’t analyze the costs and benefits of 97.5 percent,” sending the agency back to the drawing board to start over.
What about the dozens of drinking water standards that ensure the drinking water in our homes, workplaces, and schools is safe? EPA has established regulatory limits for 90 contaminants in drinking water. Imagine if, for each of these rule-makings, EPA had to evaluate the costs and benefits of every alternative. Any entity interested in slowing down or stopping the process, and there is always at least one, would just need to identify another value as an alternative and the EPA would have no choice but to evaluate the costs and benefits of that option.
But hypotheticals aren’t necessary. There are almost certainly people who have died because EPA couldn’t ban asbestos decades ago. Last year, Congress took long-overdue action to fix those problems. I can’t imagine why anyone would want to bring them back, this time across the federal government, particularly when the evidence of the impact on our health — the outdated TSCA fixed just last year — is staring Congress right in the face.
Until January, Jim Jones served as assistant administrator of the EPA’s Office of Chemical Safety and Pollution Prevention. He now consults, including for Environmental Defense Fund.
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