TSCA, Redux

• Author: Blake A. Biles/Lawrence E. Culleen
• Position: Par tners in the Washington, D.C., of f ice of Arnold & Porter LLP
• Pages: 30-34

Page 30 ❧ THE ENVIRONMENTAL FORUM Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, Jan./Feb. 2010

Since the Toxic Substances Control

Act was passed in 1976, the Envi-

ronmental Protection Agency’s im-

plementation of the law has never

lived up to Congress’s statements

of policy. e legislators intended

that producers of chemicals, on

the one hand, should develop adequate risk assess-

ment data, and on the other that the agency should

assure that chemicals do not present an unreason-

able risk of injury to health or the environment.

Suf‌f‌ice it to say that Congress was ambitious.Un-

like laws governing products that intend toxico-

logical ef‌fects — think pesticides and pharmaceu-

ticals — TSCA’s jurisdiction encompasses virtu-

ally all other chemicals in commerce irrespective

of their hazard, exposure, or risk prof‌iles. Also in

contrast to other environmental laws, TSCA con-

tains almost no terms giving direction to EPA or

setting priorities for the agency in implementing

and enforcing the act. And whereas other EPA-

administered laws have been the subject of regular

congressional review and amendment, there has

been no ef‌fective legislative ownership or oversight

of TSCA during its one-third century of existence.

(Indeed, its two sponsors exited Congress within

a few years.)

Moreover, practically from the start EPA found

it dif‌f‌icult to implement many of TSCA’s authori-

ties pertaining to risk assessment and risk manage-

ment. e bright spot has been the premanufacture

notif‌ication program for new chemicals — which

Congress required the agency to begin implement-

ing within a year of the law’s enactment. Otherwise,

since TSCA’s inception EPA has issued require-

ments for industry-sponsored and -funded test-

ing that apply to only a fraction of the estimated

80,000 chemicals that the agency considers to be in

the marketplace. And notwithstanding Congress’s

clear expectation that EPA would adopt a range of

strong measures to regulate human exposures to

chemicals having signif‌icant chronic toxicities, the

agency’s single noteworthy regulation has addressed

risks from polychlorinated biphenyls, in accordance

with the law’s prescriptive mandate for a national

PCB phaseout.

is paucity of TSCA regulatory actions, plus

a number of other legal, technical, and political

factors, have materially contributed both to EPA’s

support of “voluntary” industry data-gathering and

risk-management measures, and to the adoption of

a patchwork of state and local regulatory initiatives.

At the same time, the European Union’s REACH

program has established a chemical regulatory

framework that either directly or indirectly af‌fects

the activities of many U.S. companies. REACH is

joined by a number of non-U.S. national require-

ments aimed at banning or substantially limiting

the marketing, distribution, and use of particular

substances. e prospect for clear signals on chemi-

cals policy for producers and users has never been

foggier.

a se c o n d ac T

TSCA, Redux

e Toxic Substances Control Act has been interpreted by agency and court decisions over

the course of three decades. It is time for Congress to take the law into its own hands

Blake A. Biles

Lawrence E. Culleen

Blake A. Biles (left) and Lawrence

E. Culleen ar e Pa rtn er s in t he

Was hingt on,

D.C ., of fic e

of A rnol d &

Porter LLP.