Toxic Substances Control Act Reform: What's Happening, and What's Next?

• Date: 01 May 2016

5-2016 NEWS & ANALYSIS 46 ELR 10357

D I A L O G U E

Toxic Substances Control Act

Reform: What's Happening,

and What's Next?

Summary

Betting on Toxic Substances Control Act (TSCA)

reform before the 2016 presidential election is any-

thing but a sure thing. While most remain optimis-

tic, with each passing day, the window of opportunity

is narrowed. One possibility is that some version of

reform will be passed, requiring the U.S. Environ-

mental Protection Agency (EPA) to grapple with the

demands of implementation. Another possibility is

that TSCA reform is not enacted, and life as we know

it goes on. Either scenario poses challenges, opportu-

nities, and risks for EPA, the industrial chemical com-

munity, their downstream customers, and all of those

impacted by chemical regulation. On November 19,

2015, the Environmental Law Institute convened a

panel of TSCA practitioners and experts to discuss

these issues. Below we present a transcript of the dis-

cussion, which has been edited for style, clarity, and

space considerations.

Lynn L. Bergeson (moderator) is Managing Partner at

Bergeson & Campbell, P.C.

Dr. Lynn R. Goldman is Dean of the Milken Insti-

tute School of Public Health at e George Washington

University.

James V. Aidala is Senior Government Aairs Consultant

at Bergeson & Campbell, P.C.

Lawrence E. Culleen is Partner at Arnold & Porter, LLP.

Lynn Bergeson: Welcome to our panel discussion on

reform of the Toxic Substances Control Act (TSCA) of

1976.1 We are going to talk about the current state of play

in TSCA reform, share some thoughts on how the U.S.

Environmental Protection Agency (EPA) may go about

implementing reforms, and discuss what the challenges

and opportunities are for stakeholders in the TSCA debate.

All of our pa nelists formerly ser ved in leadership posi-

tions with EPA. Dr. Lynn R. Goldman is currently Dean

of the Milken Institute School of Public Health at e

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

George Washington University. During the William Clin-

ton Administration, Dean Goldman served as A ssistant

Administrator of what was then called the Oce of Pes-

ticide Prevention and Toxic Substa nces (now named the

Oce of Chemical Safety and Pollution Prevention). Jim

Aidala succeeded Dean Goldman in that position. Larry

Culleen served in various leadership positions in the Oce

of Pollution Prevention and Toxics, and the Oce of Pesti-

cide Programs. Perhaps most pertinent for purposes of this

discussion was La rry’s service to EPA as Chief of the New

Chemicals branch, the oce responsible for implementing

the par t of TSCA that deals with new chemical notica-

tions and notications for products of biotechnology.

Larry w ill give a brief overview of TSCA and say a few

words about some of the key concerns that have been driv-

ing TSCA reform for many years. Jim will bring us up to

date on the current state of TSCA reform legislative activi-

ties and identify why we believe current legislative initia-

tives would address some of the decits that Larry will

have identied in his remarks. en, Dea n Goldman will

discuss implementation challenges and opportunities by

walking us through dierent scenarios, all based on the

assumption that the U.S. Senate version, or something

close to it, becomes law. en we will look at day one, year

one, year ve, and year 10 from a TSCA implementation

perspective. We hope that will give a clearer sense of both

the challenges a nd the opportunities facing not only EPA,

but all of us as stakeholders in the debate.

Lawrence Culleen: TSCA has a number of titles. We’re

going to focus today on Title I, which was the portion

enacted in 1976. It’s important to recognize that the law

is now 40 years old and has many of the vestiges of those

times. But at the time of its enactment, TSCA was very

much characterized as what we would now call a pollution

prevention statute.

ere are certain core chemicals management provi-

sions. e idea of the statute was that it would  ll gaps in

other legislation that were media-specic. For example, the

Clean Water Act (CWA)2 didn’t specically address chemi-

cal substances and other sources by which they could be

discharged to various media or to which humans could be

exposed. So, TSCA was enacted to allow the Agency to

have the authority to deal with those potential risks. e

2. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.