There has been a lot of talk lately about TSCA, the Toxic Substances Control Act. It is in desperate need of reform, and, for the first time since it was enacted in 1976, it seems that Congress might actually revise some of its many failings. Organizations as diverse as the EPA, American Chemistry Council, Safer Chemicals Healthy Families coalition, Environmental Defense Fund, and Consumer Specialty Products Association have all laid out proposals for reforming the law. There is a surprising consensus on the elements of TSCA that need to be addressed, although, as always, the devil is in the details.
The idea of TSCA was first proposed in 1969, as the public and government became increasingly aware of the risk that industrial chemicals posed to both consumers and workers. Terry Davies, a staff member at the President’s Council on Environmental Quality (CEQ) at the time, referred to it as a “chemical of the month syndrome.” TSCA was intended to ensure that chemicals entering the market were safe to human health and the environment. It allows the EPA to require testing of both new and existing chemicals, provided there is a “risk of unreasonable injury,” as well as to regulate chemicals that are found to have toxic effects.
TSCA spent almost six years in negotiations among the agencies and on Capitol Hill, during which time several provisions that severely limited the potency of the act were worked into it. It can only be used when no other legislation is applicable. Until just a few days ago manufacturers and distributors had an almost unlimited ability to claim that information about their chemicals is confidential, including a chemical’s identity and safety information. There is no minimum requirement for data that must be submitted with new chemicals. The EPA cannot require testing on a new chemical until it can prove that the chemical may pose a risk, an unworkable catch-22. The more than 60,000 chemicals that were in existence before TSCA’s enactment have been largely untested for safety. Unlike for pesticides and pharmaceuticals, where manufacturers must prove that their products are safe, the resource-strapped EPA has the burden of proof. After the Corrosion Proof Fittings v. EPA case in 1991, the EPA must now prove that any potential regulation it proposes for a chemical is the least burdensome option of all other possible actions. This has effectively halted mandatory regulation on hazardous chemicals.
In this context Jody Roberts and I have embarked on a new oral history project on the Toxic Substances Control Act. By exploring the story of TSCA—its conception, negotiation, implementation, and subsequent interpretations—we hope to gain insight into the problems that have ensnared chemicals regulation. Who were considered stakeholders in 1976, and where are those interests now? How has our understanding of science changed since the 1970s, and how does that change our expectations for toxics regulation?
In October we sat down with Terry Davies at Resources for the Future. At the CEQ, Terry Davies was one of the primary architects of TSCA. He is now at the Project on Emerging Nanotechnologies, where he speaks strongly for TSCA reform. Last Friday we talked with both Warren Muir at the National Academy of Sciences and Don Elliott at Willkie, Farr & Gallagher LLP. Warren Muir was among the first team of EPA staff members responsible for implementing the law. Don Elliott was general counsel to the EPA during the Corrosion Proof Fittings court case. We discussed their roles in the legislation’s creation and interpretation and why it needs reform now.
As the project concludes, we hope to provide an opportunity for these historical actors to collectively reflect on the themes raised during their interviews and offer constructive counsel to their contemporary counterparts. But for now look for updates as Jody and I continue to speak with former legislative staffers, bureaucrats, and lawyers about the history of TSCA!