As the Obama administration launches a broad investigation of flame retardants used in furniture and other household goods, the nation's top environmental regulators are running into the limitations of a federal law that makes it practically impossible to ban hazardous chemicals.
Even assessing the health risks of some of the flame retardants will be difficult, officials say. The 1976 Toxic Substances Control Act, the only major environmental law that hasn't been updated since it was enacted, allows chemical manufacturers to skip evaluating the safety of their products before putting them on the market.
So little is known about 16 of the 20 flame retardants targeted by the U.S. Environmental Protection Agency that officials say they will be forced to estimate potential hazards by running computer models and comparing them with similar chemicals, not by analyzing actual health and safety studies.
The law also gives manufacturers broad powers to conceal the names and physical properties of chemicals as trade secrets. As a result, four flame retardants on the EPA's list are identified only as "Confidential A," "Confidential B," "Confidential C" and "Confidential D" in the agency's public documents. EPA officials are legally barred from sharing information about those chemicals with other federal agencies, independent scientists, state health departments and the public.
James Jones, the EPA's top chemical safety official, said the dearth of information highlights the need for sweeping changes in the law.
"We're going to evaluate them all for safety, and we'll do what we are able to do under the law to ensure Americans are safe," Jones said. "But we need tools to allow us to act more quickly."
If recent history is any guide, the EPA and advocates for safer chemicals face an uphill battle to revamp the law.
Sens. Frank Lautenberg of New Jersey, Dick Durbin of Illinois and other Democrats this month introduced the Safe Chemicals Act, the latest version of chemical reform legislation first proposed in 2005. Another version of the bill advanced out of committee last year but wasn't called for a floor vote amid strong anti-EPA sentiment from Republicans and a handful of Democrats.
Like earlier versions, the legislation would require chemical companies to provide more health and safety information about their products, restrict manufacturers from keeping that data secret and make it easier for the EPA to force hazardous compounds from the marketplace.
The flame retardants on the EPA's list are examples of how the chemical industry has shifted over time from one worrisome product to another with little or no study about potential hazards. Widely used in furniture, baby products, electronics and other goods, flame retardants escape over time and settle in household dust that people ingest, especially young children who play on the floor.
"Generations of Americans have been asked to tolerate exposure to potentially toxic chemicals in everything from their furniture to their clothing," Durbin said. "We need to do more than take the chemical industry at its word."
Chemical safety reform also came up during recent confirmation hearings for Gina McCarthy, an EPA official nominated by President Barack Obama to lead the agency. McCarthy promised to work with both parties "to reauthorize our antiquated chemical safety laws so they provide a clear, fair set of rules for industry and certainty for consumers that their products are safe."
The American Chemistry Council, the industry's chief trade group, says it supports the idea of a new chemical safety law but steadfastly opposed earlier versions of the Lautenberg legislation. In a statement released after the latest version was introduced, the group said "a sensible, strong and workable bipartisan solution ... is more important than ever."
An industry-backed alternative from Republican senators might be in the works, according to environmental groups involved in the debate on Capitol Hill. Such legislation might lead to a compromise or, more likely, split the Senate along party lines and thwart another chance to change the law.
The EPA acknowledges it knows little, if anything, about the safety of most of the 84,000 industrial chemicals in commercial use in the United States. Unlike European standards, which generally require companies to prove the safety of their chemicals before use, U.S. law requires manufacturers to submit safety data only if they have it.
Most don't, records show.
The EPA can require studies of new chemicals that it thinks could affect people's health. But the agency rarely does so, and the research doesn't need to be completed before the chemicals are sold.
To ban a chemical already on the market, the EPA must prove that it poses an "unreasonable risk." Federal courts have established such a narrow definition of "unreasonable" that the government couldn't even ban asbestos, a well-documented carcinogen that has killed thousands of people who suffered devastating lung diseases.
"Science has advanced dramatically since the law was written," said Linda Birnbaum, a veteran government scientist who leads the National Institute of Environmental Health Sciences. "We should be using all of the new science and not be locked into studies and approaches that were state of the art 30 or 40 years ago."