• Report from the Chemical Heritage Society's Public Dialogue on TSCA's Roots
  • April 28, 2011 | Authors: Thomas C. Berger; Herbert Estreicher
  • Law Firm: Keller and Heckman LLP - Washington Office
  • On March 3, 2011, the Chemical Heritage Foundation hosted a "public dialogue" on the Toxic Substances Control Act (TSCA) at the AAAS headquarters in Washington, DC. The event, "TSCA: From Inception to Reform", brought together a group of respected panelists whose experience heading up TSCA implementation at the Environmental Protection Agency (EPA) spanned the lifetime of the program:

    • Charles M. Auer, Office of Toxic Substances (1976-2009)

    • James V. Aidala, Associate Assistant Administrator, Office of Prevention, Pesticides and Toxic Substances (1993-2000)

    • Mark A. Greenwood, Director, Office of Pollution Prevention and Toxics (1990-1994)

    • Charles L. Elkins, Director, Office of Toxic Substances (1986-1990)

    • Glenn E. Schweitzer, First Director, Office of Toxic Substances (1973-1977)

    The panelists reflected on their work with TSCA, discussed the successes and failures of TSCA, and fielded questions concerning their views on proposed changes to the statute.

    Successes and Failures of TSCA

    The panelists largely agreed that the New Chemicals Program under TSCA has been a great success. EPA initiated the Program by establishing the TSCA Chemical Substances Inventory shortly after TSCA was enacted. From January to May of 1978, companies were asked to report their chemical substances for inclusion on the Inventory. Thus, substances in commerce at the time were grandfathered onto the Inventory. Substances listed on the Inventory are termed "existing" chemicals, while substances not on the Inventory are deemed "new" chemicals. Under Section 5 of TSCA, anyone who plans to manufacture or import a new chemical for a non-exempt commercial purpose must submit a Premanufacture Notice (PMN) to EPA. The PMN must be provided to EPA at least 90 days before the chemical is manufactured or imported.

    Despite the general agreement on the success of the New Chemicals Program, there was some dissatisfaction expressed with the distinction between new and existing chemicals. There appeared to be an expectation on the part of some that the older chemicals (those grandfathered onto the initial Inventory) would be phased out, yet many of those chemicals remain deeply ingrained in the economy.

    The group discussed how the statute affected their ability to regulate chemicals under TSCA, and identified external events or conditions that promoted or impeded progress. When TSCA was a blank slate, an early contribution of the TSCA program office was the establishment of a risk assessment framework approach to managing chemicals, which has served as a model approach in other EPA programs. Mr. Auer remarked that a central failure of TSCA is its inability to produce hazard and exposure information, which is necessary in order to determine how best to regulate a chemical substance. Other panelists acknowledged the contribution of a robust data set to effective decisionmaking.

    Another criticism of TSCA at this retrospective is the statute's lack of a definitive focus or agenda. The open-ended nature of the statutory language allows EPA broad authority, without giving the Agency any corresponding direction. Further complicating the ability to effectively implement the statute is its ever-expanding scope. As Mr. Schweitzer and Mr. Auer pointed out, TSCA was designed to be a gap-filler, but has now evolved into an umbrella that captures more than Congress ever intended. The lack of Congressional interest in the statute, combined with its open-ended nature, makes it difficult to identify priorities for chemical regulation.

    Finally, the group agreed that the 1991 Fifth Circuit decision in Corrosion Proof Fittings v. EPA, and the Justice Department decision not to challenge this ruling, was a devastating blow to EPA's regulation of existing chemicals under TSCA. The decision has effectively kept EPA from using its authority under Section 6 ever since.

    Fixing TSCA's Flaws

    Given the growing momentum in the United States to re-visit how chemical substances are regulated, the panelists discussed their wish list of modifications to the statute that would strengthen EPA's ability to effectively regulate chemicals. The group agreed that starting from scratch was impractical but had several suggestions for amending the law.

    Mr. Greenwood suggested that it is critical to identify a key value to guide EPA's efforts under TSCA. For example, over the years the Resource Conservation and Recovery Act (RCRA) has developed a focus on groundwater protection. While TSCA originally focused on worker protection, now EPA has turned its focus to the use of chemicals in consumer products. Mr. Greenwood recommended creating a prioritized agenda to guide EPA's regulation of chemicals. Mr. Elkins agreed, emphasizing the importance of choosing several issues to tackle and succeeding in those areas, rather than spreading resources among a large variety of efforts.

    Mr. Aidala recommended implementing clear testing requirements. He also suggested using schedules and deadlines to create accountability, draw outside interest, and help the program survive the programmatic whiplash that inevitably occurs with the arrival of a new political party. Similarly, Mr. Schweitzer suggested requiring EPA to submit an annual or biannual report to Congress on the state of chemical control. Mr. Aidala also recommended using the "unreasonable risk" standard, which he believed has been well-defined.

    Mr. Aidala and Mr. Greenwood also believed that addressing the Corrosion Proof Fittings decision is critical to the future success of TSCA. Finally, Mr. Auer recommended ratifying the Stockholm and Rotterdam Conventions in order to keep pace with evolution of international chemical control.