TSCA Reform: Building a Program That Can Work

• Date: 01 January 2009

39 ELR 10034 ENVIRONMENTAL LAW REPORT ER 1-200939 ELR 10034 ENVIRONMENTAL LAW REPORT ER 1-2009

TSCA Reform:

Building a

Program That Can

Work

by Mark A. Greenwood

Mark A. Greenwood is a partner in the Washington,

D.C., off‌ice of Ropes & Gray LLP.

Editors’ Summary:

The time for TSCA reform is basically now or never. The

emerging framework of chemical management from other

countries and U.S. states may or may not need to be

steered in a new direction or aligned in a more systematic

and coherent way by federal legislation. At some point,

the policies and practice of the emerging chemical man-

agement system will settle into a new equilibrium, per-

haps making congressional action a disruptive activity.

If, however, there is consensus that federal reform would

be benef‌icial, then it should only proceed with a clear

agenda, provision of the necessary resources, establish-

ment of risk-based priorities, protection of the ability to

innovate, a balance of burden shifting, avoidance of the

new versus existing chemical trap, and by addressing the

role of states.

The new Administration and Congress coming to power

in 200 9 will be asked to address a key strategic issue

on chemical management policy that has lingered for

many years: whether the Toxic Substances Control Act (TSCA)

should be reconsidered and fundamentally changed to assure

health and environmental protection. T his is an important

question not because the law must necessarily be changed. It

is important because unless TSCA is changed in the next few

years, it is unlikely that it will ever be changed.

TSCA is one of the oldest federal environmental statutes

that has never seen substantial reform. When it was passed

in 1976, it was considered the cutting edge of environmental

law. Yet, as the U.S. Environmental Protection Agency (EPA)

struggled to transform the many statutory tools of TSCA into

a coherent chemicals management program, policy experts

began to criticize aspects of the statute itself. Certainly by the

1980s, TSCA was being characterized as an ineffective law.

In the early 1990 s, when the courts rejected EPA’s compre-

hensive ban on asbestos, TSCA became widely known as a

“broken” statute. Periodically various congressional commit-

tees have held hearings to discuss TSCA reform, but none of

these efforts produced any substantial result.

In the long period during which Congress contemplated,

but did not pursue, changes to TSCA, EPA was able to develop

elements of a chemical management program that proved

quite effective and became a model for the rest of the world. In

particular, many countries borrowed the idea of establishing

an inventory of existing chemicals and a para llel program to

screen, and regulate as needed, new chemicals entering com-

merce. EPA also provided international leadership on the idea

of developing a base set of testing requirements for high pro-

duction volume chemicals that would then serve as the start-

ing point for further testing and possible risk management.

EPA implemented specif‌ic statutory mandates to regulate

chemicals like polychlorinated biphenyls (PCBs), lead, and

asbestos, again establishing precedents that were adopted by

other countries.

In the 21st century, however, both TSCA the statute and

TSCA the program lost their leadership position. New actors,

bringing new approaches and greater resolve to the issues, have

stepped forward and created a more diverse and “multipolar”

framework for global chemical management. Perhaps the most

obvious of these new leaders is the European Union, which

enacted and is now implementing the Registration, Evalua-

tion, Authorization, a nd Restriction of Chemicals (RE ACH)

program. In addition, a series of international agreements and

accompanying international organizations address key aspects

of chemical management. Global commerce in chemicals is

also increasingly a ffected by the health and environmental

policies in major Asian countries.

Closer to home, Canada’s Chemical Management Plan rep-

resents the most ambitious chemical management program