Or consider EPA’s recent significant new use rule for benzidine dyes, finalized last December. EPA identified the breakdown products of benzidine dyes as known human carcinogens, and referenced evidence of potential exposure from the dyes in clothes and textile-related uses. Based on the available information EPA had regarding the chemical’s toxicity, and the potential for exposure from clothing, footwear and textiles, EPA imposed a new use notice requirement for any new use of benzidine dyes, and lifted the articles exemption, making the notice requirement applicable to potential new uses of benzidine dyes in articles (products) to be imported into the US.

Under the new Senate language, EPA might be able to issue the same notice requirement for use of benzidine dyes in clothes, footwear and textiles – as long as it could clear the new hurdle of demonstrating satisfactorily (to a court reviewing EPA’s action in a legal challenge brought by industry) that it had identified a reasonable potential for exposure to benzidine dyes from each of those types of articles. But for any other articles, or category or articles for which EPA could not as easily identify a “reasonable potential for exposure” from the chemical — for example, other categories of articles for which EPA did not already have some exposure information — a court might rule that EPA did not have the authority to extend notice requirements to those uses, despite the agency’s concerns about the chemicals’ potential harm to health or the environment. Relying on the argument that EPA might prevail in such a lawsuit as an excuse for not flatly rejecting the proposed weakening of current law is simply irresponsible. The new Senate language in fact makes it more likely that articles containing chemicals of concern to EPA will be imported into the U.S. It is also directly contrary to what the drafters of the original TSCA intended.

In the Committee report filed when TSCA was originally passed in 1976, the Senate Commerce Committee (which handled TSCA then) noted the heightened concern about chemicals causing cancer, birth defects and other harms to health and the environment and the limited scope of other existing laws that touched in various ways on the problem of chemical pollution including the Clean Air Act, Clean Water Act, Occupational Safety and Health Act and the Consumer Product Safety Act: “None of these statutes provide the means for discovering adverse effects on health and environment before manufacture of new chemical substances. Under these other statutes, the Government regulator’s only response to chemical dangers is to impose restrictions after manufacture begins. The most effective and efficient time to prevent unreasonable risks to public health or the environment is prior to first manufacture. It is at this point that the costs of regulation in terms of human suffering, jobs lost, wasted capital expenditures, and other costs are lowest…. If hazards are to be discovered and prevented prior to the manufacture of new chemical substances or prior to the imposition of significant new uses of existing substances, premarket notification is an essential provision…the pre-market notification provisions of the committee bill forms [sic] the backbone of the preventive aspects of health protection sought by this legislation.”