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TSCA Reform Debate Is Not about Public Safety

At recent hearings on the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), senators, environmental activists, and local government officials claimed that the Toxic Substances Control Act (TSCA) law is not sufficient protect public health. As I have argued before, that’s certainly not the case.

There may be an economic reason to reform this law—to preempt a growing patchwork of nonsensical state-level consumer product regulations—but there’s no legitimate “safety” reason for reform.

Still, activists and some members of Congress at the hearing complained that TSCA’s risk standard has prevented the EPA from banning “a known human carcinogen,” i.e., asbestos. Cosponsor of S. 697 Senator Tom Udall (D-N.M.) exclaimed at the hearing, “I think we all agree: TSCA is fatally flawed. It has failed to ban even asbestos.”

Activists and members of Congress point out that EPA failed to address asbestos in part because TSCA requires EPA to pick the “least burdensome” regulation to achieve its goals. 

But how can that be a bad thing? Shouldn’t we want to achieve our goals at the lowest costs? It doesn’t say EPA should pick a regulation that is less safe; rather, it says that EPA should simply pick a less expensive means to meet the safety goal.

That requirement is part of TSCA’s robust risk standard that holds regulators accountable and prevents them from passing rules that do more harm than good. Under TSCA, EPA may regulate when the agency finds that a chemical may pose an “unreasonable risk of injury to health or the environment.” This standard requires weighing the risks of the chemical against the risks of the regulatory action.

People who use the asbestos case to push TSCA reform are either grossly misinformed about the case or they are simply being disingenuous. It is true that the rule was thrown out by a federal court in part because EPA did not bother to find the “least burdensome” approach to meet its goals. In addition, the court pointed out that the rule might have produced more deaths than theoretical lives saved. Accordingly, this is not a TSCA failure, it’s a life-saving success!

Consider the history. In the 1980s, exposure and use of asbestos were already well regulated by OSHA and other EPA regulations to ensure safe management of these chemicals under other statutes. Still, the EPA wanted to impose even more stringent regulations on asbestos. In 1989, the EPA released a very ambitious TSCA rule banning most asbestos uses, affecting dozens of businesses and applications. The agency concluded that this standard would theoretically prevent somewhere between 148 and 202 cancer cases at a cost of $3 million to $4 million per cancer case.

Given the scope of this regulation, it was imperative that the agency justify its decision based on science and the risk-risk considerations set under the TSCA statute. A federal court eventually ruled that the EPA failed to meet those basic requirements and that EPA could endanger public health and safety with this rule.

The Fifth Circuit Court of Appeals opinion in Corrosion Proof Fittings v. EPA stated: 

EPA failed to study the effect of non-asbestos brakes on automotive safety, despite credible evidence that non-asbestos brakes could increase significantly the number of highway fatalities, and that the EPA failed to evaluate the toxicity of likely brake substitutes…substitute products actually might increase fatalities.

So, basically, had EPA passed this rule, more people could have died on highways because of inadequate substitute brake products. That prospect alone was a good reason not to proceed with EPA’s asbestos ban.

In addition to increasing risks associated with brake failures, EPA’s rule was unlikely to reduce cancer rates because the risks of the type of asbestos used in products on the market then and now are negligible. EPA’s rule would have banned chrysotile asbestos fibers. These fibers are enclosed inside products—preventing consumer exposure. Chrysotile fibers also present relatively low risks to workers exposed to higher levels. As summarized in a paper published by the American Council on Science and Health, numerous studies on workers exposed to chrysotile asbestos in friction-control industries—such as workers for brake manufacturers and automotive brake repair workers—failed to detect significant cancer risks. Of course, protective work practices remain important in preventing any dangerous exposure levels.

Amphibole fibers, on the other hand, are a more serious concern because they are long, thin and easily embed in human tissue and persist for a long time. But they were not in the products EPA wanted to regulate. Nonetheless, environmentalists want TSCA reform to allow bans on chrysotile asbestos—never mind how many people might die as a result.

Unfortunately, the TSCA bill on the table will eliminate the requirement that the agency apply the least-burdensome approach when regulating chemicals, and everyone at the hearing seemed to think that’s a good idea.

In reality, the only potentially useful parts of the bill are its preemption provisions that would set standards for all 50 states to facilitate interstate commerce. Currently, myriad conflicting chemical regulations are popping up in the 50 states, impeding interstate commerce for many consumer products. It’s reasonable that businesses want one standard rather than 50. In fact, that’s why our Constitutional Framers formed a union in the first place. At the time, state trade wars were impeding the free flow of goods, which is what 50 sets of chemical regulations may well do.

Ultimately, none of these nanny-state laws—although they masquerade as “safety” laws—can do any good. Human exposure to the trace chemicals that TSCA regulates and that states are clamping down on really don’t pose significant safety risks. The exposures are simply too low to have impacts.

The best research indicates that most cancers—the main concern about trace synthetic chemicals—result from lifestyle choices, such as overeating, poor dietary choices, and smoking. There is little evidence of any cancers from trace chemicals used in consumer products. After losing the intellectual debate on cancer, activists have drummed up a bunch of other alleged health effects from trace chemicals, such as “endocrine” effects. But those claims too are highly questionable, as I detailed in my recent paper published by the Independent Women’s Forum.

The biggest risk associated with TSCA reform doesn’t come from the chemicals it regulates.  Rather, opening the law may lead to elimination of the law’s very sound standards that protect consumers and holds regulators accountable. Surely, preemption of anti-technology state-level laws is good, but if TSCA’s risk-based standard is sacrificed in the process, consumers will likely be worse off.