TSCA §§9, 18, 22, and 28-Relationship to Other Laws

• Author: Carolyne R. Hathaway/William K. Rawson/Ann Claassen/Julia A. Hatcher
• Pages: 141-146

Page 141

Chapter XIV:

TSCA §§9, 18, 22, and 28—

Relationship to Other Laws

Prior to passa ge of TSC A, Congress had

already enacted a number of laws to regu-

late chemical substances for protection

of human hea lth and the environment. ese

included the Occupational Sa fety and Health Act

of 1970 (chemicals in the workplace),1 FFDCA of

1938 (chemicals used as or in foods, food addi-

tives, pharmaceuticals, and cosmetics),2 FIFR A

(chemicals used as pesticides),3 the Federal Hazard-

ous Substances Labeling Act of 1960 (chemicals in

consumer products),4 the FWPCA Amendments

of 1972 (chemicals discharged to water),5 and the

CAA of 1970 (chemicals discharged to the a ir).6

In enacting TSCA, it was the intent of C ongress

that it ll the gaps rather than displace other fed-

eral chemical regulation programs,7 and Congress

included TSC A §9 to direct EPA to rst look to

other federal statutes before fa lling back to TSCA.

However, Congress also preserved the ability of

states generally to regulate chemicals by limiting

the preemptive eect of TSCA with TSCA §18,

and even provided in §28 for grants to states to

develop programs to reduce chemical risks. Con-

gress also included TSCA §22, which provides for

waiver of compliance with TSCA if necessary for

national defense.

1. Pub. L. No. 91-596, 84 Stat. 1590 (codied as amended at 29

U.S.C. §651 et seq.).

2. Pub. L. No. 75-717, 52 Stat. 1040 (codied as amended at 21

U.S.C. §301 et seq.).

3. Pub. L. No. 92-516, 86 Stat. 973 (codied as amended at 7

U.S.C. §136 et seq.).

4. Pub. L. No. 86-613, 74 Stat. 372 (codied as amended at 15

U.S.C. §1261 et. seq.).

5. Pub. L. No. 92-500, 86 Stat. 816 (codied as amended at 33

U.S.C. §1251 et seq.).

6. Pub. L. No. 91-604, 84 Stat. 1676 (codied as amended at 42

U.S.C. §7401 et seq.)

7. H.R. R. N. 94-1679 (1976).

A. TSCA §9—Relationship to Other

Federal Laws

In enacting TSCA , Congress anticipated that

questions would arise as to the appropriate federa l

agency and/or federal law that should be used to

regulate risks from chemical substances and mi x-

tures.8 is led to the inclusion of TSCA §9 “to

assure that overlapping or duplicative regulation is

avoided while attempting to provide for the great-

est possible measure of protection to health and the

environment.”9

TSCA §9 addresses the potential overlap

between federa l agencies and laws in several ways.

First, TSCA §9(a)(1) establishes a statutory referral

procedure to determine when it would be appropri-

ate to give another federa l agency the rst oppor-

tunity to regulate a risk identied by EPA under

TSCA. Second, TSCA §9(b) establishes TSCA as a

“gap-lling authority,” to be used as EPA’s basis for

regulation only if other federal laws administered

by EPA cannot protect against unreasonable chem-

ical risks to health or the environment.10 Fina lly,

TSCA §9(d) requires EPA to “consult and coordi-

nate” with the heads of other federal agencies and

to report to Congress a nnually on its coordination

activities.11

8. Memorandum from Gerald Yamada, Acting General Counsel,

U.S. EPA, to Lee omas, Acting Administrator, U.S. EPA,

Regarding: e Relationship of the Toxic Substances Control

Act to Other Federal Programs Under Section 9 (Jan. 31, 1985)

(published in O  G. C, U.S. EPA, G

C O F  O  G C,

U S E P A: J

,  T J , , at - (), available

from O  G C, U.S. EPA, O 

G C—D (), available at http://

www.epa.gov/ogc/documents.htm) [hereinafter R

 TSCA  O F P].

9. Id. at 170 (quoting H.R. R. N. 94-1679 (1976)).

10. Id. at 169.

11. 15 U.S.C. §2608(d), ELR S. TSCA §9(d).