Our Toxic Status Quo

WASHINGTON -- Today's topic is toxic substances and the appalling gaps in the current law that is supposed to protect the public from dangerous chemicals.

For example, before a new chemical enters the market, the manufacturer must demonstrate its safety and the substance must win approval from federal regulators, right?

Not even close.

When it comes to new medications, the Food and Drug Administration conducts a rigorous review. Same for pesticides and the Environmental Protection Agency. But chemicals -- even chemicals used in everyday household products -- are presumed safe until proven otherwise. Indeed, companies don't even have to test chemicals before using them in consumer products

Not only that: The EPA, which is responsible for overseeing chemical safety, is all but toothless even when serious questions are raised about substances already in use. If you think this is hyperbole, consider the example of asbestos, classified as a "known human carcinogen." So it's banned, right?

Nope.

In 1989, after studying the issue for 10 years and concluding that asbestos posed "an unreasonable risk to human health," the EPA moved to prohibit most products that contain asbestos. Two years later, it was shot down by a federal appeals court, which concluded that the agency had overstepped its authority.

Since then, the EPA has not proposed regulating a single additional toxic substance. Not a single one, despite the emerging evidence that an alphabet soup of chemical substances -- BPA in plastic baby bottles, PFCs in nonstick surfaces for pans, PBDEs in flame retardants for furniture -- collect in the human body and are linked to health problems, particularly in children.

The fundamental difficulty, and the reason I'm writing about this topic today, is the ineffectiveness of a 1976 law, the Toxic Substances Control Act, that was supposed to regulate such materials. When the law was passed, some 60,000 chemicals were listed as being in use in household or industrial products. Since then, the EPA has only been able to require testing on just over 200; only five have been banned or even restricted.

When the toxic substances law was passed, the prevalent scientific thinking was that, unlike pharmaceuticals or pesticides that are at risk of being ingested, chemical compounds are not intended to be biologically active and therefore not likely to cause harm. That has turned out to be dangerously incorrect.

"We now know that hundreds of chemicals have properties of concern to human health. And, moreover, we have evidence that we are being exposed to them in ways that we were not decades ago," said Richard Denison, lead senior scientist at the Environmental Defense Fund.

Here's the good news: An astonishing bipartisan coalition of senators, assembled by David Vitter of Louisiana and Tom Udall of New Mexico, is pushing an overhaul of the law, the culmination of a decade-long effort launched by the late Sen. Frank Lautenberg, D-N.J.

The Senate Environment and Public Works Committee approved it last week, by a vote of 15-5. When Jim Inhofe, R-Okla., and Jeff Merkley, D-Ore., agree on something beyond what to name a post office, that's an achievement.

The confluence of interests that produced this progress stems from the ramped-up activity of state regulators in the absence of federal oversight, and the chemical industry's preference for a federal rule rather than patchwork, and potentially more burdensome, state edicts.

But this impetus for action also reflects the biggest disagreement over the proposal -- over the degree to which the federal law would pre-empt state regulation. This dispute that has split the environmental movement and spurred the environment panel's ranking member, California Sen. Barbara Boxer, not only to vote against the measure in committee but to threaten a filibuster on the floor.

The chemical industry would prefer to have a federal law that entirely pre-empts state regulation. The compromise worked out by Vitter and Udall would allow existing state protections against hazardous chemicals to remain in place; states would remain free to impose additional regulations unless and until EPA decided to launch a review.

Not perfect, but about as good as it is going to get with a Republican Congress that isn't disappearing anytime soon. Meanwhile, as with the blowup of climate change legislation in 2009, congressional failure now could mean no action for years.

"The risks are substantial that we will likely lose the best opportunity we've had in a generation," said the EDF's Denison. Then, he said, "we go back to a status quo that everybody agrees is a failure."

And that would be truly appalling.

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Ruth Marcus' email address is ruthmarcus@washpost.com.