In Search of the Toxic Five

Part 1 of 2 on the scant few chemicals regulated under the Toxic Substances Control Act

Only five chemicals pose “unreasonable risk” according to EPA. Not really.

The Toxic Substances Control Act (TSCA) — affectionately called “Tosca” by environmental aficionados — was passed into law in 1976. It was intended to give the Environmental Protection Agency the power to protect the public and the environment from “unreasonable risks of injury … associated with the manufacture, processing, distribution in commerce, use, or disposal of chemical substances” both naturally occurring and synthetic, with some notable exceptions including food, cosmetics and pesticides. But it’s hard to find anyone who does not believe the law has fallen far short of that goal. For some examples, see critiques here, here, here and here.

Even EPA Administrator Lisa Jackson has issues with the current law, as demonstrated in remarks she prepared for the Commonwealth Club on San Francisco in 2009:

“Right now, we are failing to get this job done … not only has TSCA fallen behind the industry it’s supposed to regulate — it’s been proven an inadequate tool for providing the protection against chemical risks that the public rightfully expects. … Since 1976, EPA has issued regulations to control only five existing chemicals determined to present an unreasonable risk. Five from a total universe of almost 80,000 existing chemicals.”

Why only five? Administrator Jackson cites two reasons:

  1. TSCA does not require industry to test a new chemical before producing and using it — essentially all chemicals are presumed to be safe unless proven otherwise.
  2. TSCA requires EPA to exceed a very high burden of proof before regulating a chemical — the law states that the agency must show that the chemical poses an “unreasonable risk.”

So Which Five Chemicals Are Regulated Under TSCA? The Search Begins.

As it turns out, finding the identity of these toxic five is a surprisingly difficult task. Ask me, and I’d say they should be listed front and center on EPA’s website, www.epa.gov. Let’s see.

Start with the obvious: type “TSCA” into the search box on EPA’s site. This yields a number of hits, the first of which is a summary page of the law which describes some but not all of the law’s sections (e.g., there’s no mention of Section 6, the part that gives EPA the authority to regulate and even ban existing chemicals). There is a list of four compounds near the top: polychlorinated biphenyls (PCBs), asbestos, radon and lead-based paint.” Are those four of the regulated five? Would you take two?

Try another EPA web page, this one titled Toxic Substances Control Act. There’s mention of four chemicals again, three of which appear in the first list: asbestos, chlorofluorocarbons (CFCs), lead, and PCBs. Are these three of the five, and if so, what are the other two? No clue here.

Managing Chemical Risk, yet another EPA page, lists five chemicals along with links “where you can find a excerpt:encoded of the EPA activity on the specific chemical”: asbestos, formaldehyde, lead, mercury, and PCBs. Maybe these are … well, perhaps you guessed: no.

But wait! There’s another page that looks really promising. You can get to it by way of the agency’s Substance Registry Services and searching with the filter “TSCA 6 – unreasonable risk.” Surely that must hold the answers. But no, this search returns a list with not five but 30 chemicals. Some of these, like PCBs, look about right, but others, not so much.

There’s Unreasonable Risk … and Unreasonable Risk?

For example, lead is on this list of “unreasonable risk” substances. Now, it is true that lead-based paint was banned for residential by the Consumer Product Safety Commission in 1978. And TSCA does include a set of requirements to be used when renovating houses with lead-based paint. (See this brochure [pdf] for details on renovations and lead.) But there appear to be no TSCA regulations on lead or lead-based products at this time. The bottom line: the chemicals on this list are not all regulated under TSCA as to their manufacture or use.

Seems that if you want to find out what EPA regulates under TSCA, the one place you should avoid is the EPA website. We can only hope that the folks at EPA have been so busy regulating unsafe chemicals, they simply have not had time to actually list them in one place.

After hours of searching, I think the answer lies hidden deep in Appendix V of a report [pdf] by the Government Accountability Office:

“The Environmental Protection Agency (EPA) has promulgated rules under section 6 of the Toxic Substances Control Act (TSCA) to place restrictions on five existing chemicals or chemical categories and four new chemicals. The five existing chemicals/chemical categories are polychlorinated biphenyls (PCB), fully halogenated chlorofluoroalkanes, dioxin, asbestos and hexavalent chromium. The four new chemicals are all used in metal working fluids.”

The Toxic Five … Plus Four

If this is in fact the straight skinny (and it is hard to be sure), it turns out that EPA is regulating not just five compounds under TSCA but nine through both Sections 6 (existing chemicals) and 5 (new chemicals)! So technically Administrator Jackson was correct when she said EPA regulates only “five existing compounds” because the term “existing” is TSCA legalese to mean the 62,000 or so chemicals that were inventoried when TSCA was enacted. Of those 62,000, EPA is in fact regulating five: PCBs, halogenated chlorofluoroalkanes, dioxin, asbestos and hexavalent chromium.

But in addition to the 62,000 chemicals defined by “existing,” there are now another 20,000-odd “new” chemicals, and of those new ones, EPA regulates four under TSCA (namely, mixed mono and diamides of an organic acid, triethanolamine salts of a substituted organic acid, triethanolanime salt of tricarboxylic acid, and tricarboxylic acid) by restricting their use with nitrates or nitrosating compounds in metal working fluids.

It is amazing how many places you can find statements that EPA regulates only five existing chemicals. Maybe it’s technically correct, but it’s unnecessarily misleading. And why aren’t the chemicals easily found on EPA’s website? Very puzzling. But being no expert on web design, I suppose even the best digital information architects out there would be challenged by figuring out the best way to navigate a list of some 83,000-odd chemicals. (And that could be why there is this page explaining how to access TSCA’s chemical inventory — and ultimately why the information might be more readily available in CD-ROM form for a hefty price. But then again maybe not.)

Next up: What’s the story on these toxic five … plus the other four?

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