Ten Essential Elements in TSCA Reform

• Date: 01 January 2009

39 ELR 10020 ENVIRONMENTAL LAW REPORT ER 1-200939 ELR 10020 ENVIRONMENTAL LAW REPORT ER 1-2009

Ten Essential

Elements in TSCA

Reform

by Richard A. Denison

Richard Denison is a Senior Scientist with

Environmental Defense Fund in Washington, D.C.

Editors’ Summary:

Congress enacted TSCA in 1976 to control risks from

chemicals in commerce. It requires the government to

review most new chemicals while they are being devel-

oped and it gives government the power to regulate

chemicals already in or entering commerce if they create

an “unreasonable risk” to health or to the environment.

Yet current policy hinders government’s ability to gener-

ate information and to act on such information when it

indicates signif‌icant risk. This Article identif‌ies 10 ele-

ments that can facilitate a shift toward knowledge-driven

policies that motivate and reward, rather than impede

and penalize, the development of information suff‌icient

to provide a reasonable assurance of chemical safety.

Adopting a more comprehensive approach that seeks to

develop good information on most or all chemicals would

allow us to select safer chemicals with conf‌idence.

For the last several decades, government policy has

granted the tens of thousands of industrial chemicals

already in commerce a strong “presumption of inno-

cence.” In the absence of clear evidence of harm, companies

have largely been free to produce and use such chemicals as

they’ve seen f‌it. This policy contrasts sharply with the “pre-

sumed guilty until proven innocent” approach adopted for

pharmaceuticals and pesticides. For these substances, produc-

ers have the burden of providing to the government informa-

tion demonstrating their safety, at least when used as intended.

Yet for industrial chemicals, the opposite is true: Gov-

ernment—and, hence, the public—shoulders the burden of

proof. In what amounts to a classic Catch-22, go vernment

must already have information suff‌icient to document potential

risk, or at the very least, extensive exposure, in order to require

the development of information suff‌icient to determine whether

there is actual risk. This burden is so high that in the 32 years

since the Toxic Substances Control Act (TSCA)1 was enacted,

the U.S. Environmental P rotection Agency (EPA) has required

testing for only about 200 chemicals.2

Current policy essentially says: “We’ll consider develop-

ing a better understanding only of those chemicals t hat we

already have good reason to believe pose a risk.” This is rather

like the old adage about looking for lost car keys at night only

under the streetlight because the light is better there. So when

it comes to choosing among several available options to pro-

vide a desired chemical function, or to replacing a problematic

chemical, we are often in the dark and run the risk of simply

“replacing the devil we know with the devil we don’t.” Society

remains largely ignorant about the risks of the great majority

of chemicals because we only investigate those about which we

already know something. That means we fail to learn not only

which chemicals pose r isks, but also which chemicals pose

little or no risk. Adopting a more comprehensive approach that

seeks to develop good information on most or all chemicals

would allow us to select safer chemicals with conf‌idence.

TSCA places an even higher—some would say impossibly

high—burden on EPA before it can act to control a chemi-

cal. Government must effectively prove beyond all reasonable

doubt that a chemical poses a risk in order to take any regula-

tory action to restrict its production or use. Since adoption of

1. 15 U.S.C. §§2601-2692, ELR STAT. TSCA §§2-412.

2. Since 1979, EPA has used its test rule authority under TSCA §4, 15 U.S.C.

§2603, to require testing of about 200 chemicals. For about 60 of these chemi-

cals, the data were obtained through §4 Enforceable Consent Agreements

(ECAs), which EPA uses as an alternative to test rules in cases where there

is agreement with industry on the need and scope of testing. OFFICE OF POLLU-

TION PREVENTION & TOXICS (OPPT), U.S. EPA, OVERVIEW: OFFICE OF POLLUTION

PREVENTION AND TOXICS PROGRAMS 4, 15 (2007), available at http://www.epa.gov/

oppt/pubs/oppt101c2.pdf [hereinafter OPPT OVERVIEW, 2007].