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The result is a catch-22 for regulators and an information vacuum for consumers. Chemical companies don't have to develop toxicity data or submit it to the EPA for an existing product unless the agency finds that it will pose an unreasonable risk to human health or the environment which is difficult to do if the agency doesn't have much data in the first place. The EPA can issue rules requiring testing, but that can take years and cost hundreds of thousands of dollars which helps explain why the agency has required testing for only about 200 of the 83,000 chemicals in the TSCA inventory and has issued restrictions on just five. (Companies have voluntarily agreed to provide the EPA with some data about the most common chemicals, but there's no guarantee that the data will be timely or complete.) The TSCA also gives the industry wide latitude to claim confidentiality on products, so nearly 17,000 of those chemicals are virtual trade secrets. It's no surprise that the Government Accountability Office has reported that the TSCA is in desperate need of reform. "The only fix is to change this law or modernize it," says EPA Administrator Lisa Jackson.
The good news is that more than 30 years after the TSCA was signed, the pieces may finally be in place for much needed retooling. Jackson has made chemical-safety reform one of the top priorities of her energetic administration, and on Capitol Hill, the tenacious, 86-year-old Lautenberg and Illinois Representative Bobby Rush are pushing to craft an update to the TSCA and may have legislation ready to introduce after the Easter break. Even the chemical industry has admitted a need to reform the TSCA and is ready to negotiate. "Science has advanced a long way since the TSCA was adopted, and we recognize that more can be done to create a system that people have comfort and confidence in," says Cal Dooley, president and CEO of the American Chemistry Council.
But agreeing on the need for reform is a long way from agreeing on how to reform. One model might be the safety laws recently put into place by the European Union, called REACH, which shift the burden of proof to industry, requiring chemical companies to prove that their products don't harm human health or the environment and to obtain special authorization for any chemicals of very high concern. The American chemical industry has reservations about a REACH-style program in the U.S., citing the cost of additional regulations, but such a change could represent a long-overdue safety step. "It would make a major difference if we could do for chemicals what we do now for pesticides and drugs," says Richard Denison, a senior scientist at the Environmental Defense Fund.
Reform alone, though, won't defuse the basic debate over how much of an impact chemicals really are having on human health and when protective measures may go too far. Nearly everything we buy, sell and use depends on chemicals, and the industry employs 803,000 Americans. Replacing the keystone ingredients of modern life would be challenging, not to mention costly. And smarter regulation won't change the fact that the science on chemicals and health especially for complex endocrine disrupters will never be clear-cut, no matter how many studies each side carries out. "You can ban BPA all you want, but if there are no better materials, you'll just move to the next case," says Joel Tickner, an associate professor at the University of Massachusetts' School of Health and Environment. "We need solutions that will be win-win."
One such solution may lie in the new field of green chemistry, in which chemicals are designed in a way that minimizes hazardous risk from the start. Less a practice than a philosophy, green chemistry seeks to sidestep the debate altogether by engineering products not only to be nontoxic but also to leave no dangerous residue and to use less energy. The EPA's Presidential Green Chemistry Challenge Awards recognize achievements in sustainable design like a new biocatalytic process for cosmetics that uses no toxic solvents, and at last month's annual meeting of the American Chemical Society, more than 1,600 of 12,000 presentations were dedicated to sustainability. "There'll be a day in the future when all chemistry is going to be green," says John Warner, director of the Warner Babcock Institute for Green Chemistry. "In that world we'd never need regulation again."
But even Warner admits that such a day is far off. Meanwhile, we'll need to decide just how cautious we want to be as a society. "Science isn't just about data," says the NIEHS's Birnbaum. "It's about the interpretation of data." That interpretation, ultimately, won't be up to scientists. It will be up to us. The lesson of Earth Day, 40 years on, is that smart policy fired by popular will can make a difference that we can see. The question is whether we'll bring the same passion to environmental threats that are invisible but could be just as dangerous.
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