What Can TSCA Do for You?
For the last year, momentum has been building for chemicals reform. Public discussions have largely focused on procedural impediments within TSCA to an effective chemicals policy—confidential business information, insufficient data and the catch-22 to obtain more data, burden of proof, and grandfathered existing chemicals to name a few. As part of an ongoing oral history project, Jody and I have been speaking with the former EPA bureaucrats who were actually given the responsibility of implementing a national chemicals policy. In our discussions, all of these problematic elements of TSCA have been raised. However, many of them have highlighted more fundamental problems with the law that have remained largely unaddressed in these discussions.
We interviewed EPA assistant administrator Steve Jellinek, who was the first Assistant Administrator for Pesticides and Toxic Substances, serving from 1977-1981. After leaving EPA, he founded the pesticide consulting firm Jellinek, Schwartz & Connolly Inc., although he is currently retired. We also spoke with Linda Fisher, the Assistant Administrator for the Office of Prevention, Pesticides and Toxic Substances from 1989-1993. After EPA, was “of counsel” at Latham & Watkins LLP before becoming Vice President for Government Affairs at Monsanto; Fisher is currently both the Vice President for Safety, Health and Environment and Chief Sustainability Officer at DuPont.
We spoke with Marilyn Bracken, who from 1978-1983 was the Deputy Assistant Administrator for Program Integration in the Office of Toxic Substances (OTS), in charge of developing OTS’s databases and international cooperation. She now works with Institute for Defense Analyses. Don Clay was the Director of OTS between 1981 and 1986. After a total of 12 years at EPA, he founded his own consulting firm. This month he is stepping down as the Director of Environmental Regulatory Affairs at Koch Industries. Chuck Elkins was the OTS Director immediately after Clay, from 1987 to 1990. He spent over 20 years at EPA before becoming vice president at Jellinek, Schwartz & Connolly. He is currently president of the consulting firm Chuck Elkins & Associates. Finally, we spoke with Mark Greenwood, who was the Director of the Office of Pollution Prevention and Toxics (OPPT, formerly OTS) from 1990-1994. Since then, he has been an attorney at Ropes & Gray LLC.
Many of these former bureaucrats identified the biggest impediment to building a comprehensive, effective chemicals policy as being the fact that TSCA lacks the specific mandate to do so. Whereas the public expects a federal chemicals policy that ensures chemicals are safe, TSCA as written has three purposes: data collection and risk assessment, risk management, and the prevention of “unnecessary economic barriers to technological innovation.” Many of the problematic elements of TSCA have roots in this lack of a clear agenda. Other than screening new chemicals and regulating PCBs (both of which are explicitly required in the law), OPPT has been unable to build a forceful program; rather, its priorities and strategies have been vulnerable to erosion by political whim. Procedural hurdles within TSCA prevent EPA from brashly impeding innovation, but at the expense of acquiring toxicity data necessary to ensure that chemicals are safe. The OPPT has been unable to prioritize existing chemicals partially because Congress failed to define what constitutes a reasonable risk of injury, and how to evaluate that risk.
It’s clear from the groups involved in reform that changes are needed in the law that underpins our nation’s chemicals policy. In this type of discussion, it is easy to get caught up in the minutiae of the law’s language. But understanding what exactly needs to be fixed is more than just a linguistic exercise. Our ongoing interviews have highlighted the importance of understanding the complexities of how the law will be implemented. Given a specific agenda, what kind of tool can or ought TSCA be? If we approach prospective reform from a more holistic perspective, we might start thinking about what a new law needs so that it can be an effective tool, and if models for similar tools already exist.