TSCA 2.0: A New Era in Chemical Risk Management: After Decades of Dysfunction, the Toxic Substances Control Act Has Been Overhauled with Provisions That Promise Better Protection against Potentially Harmful Chemicals

By Schmidt, Charles W. | Environmental Health Perspectives, October 2016 | Go to article overview

TSCA 2.0: A New Era in Chemical Risk Management: After Decades of Dysfunction, the Toxic Substances Control Act Has Been Overhauled with Provisions That Promise Better Protection against Potentially Harmful Chemicals


Schmidt, Charles W., Environmental Health Perspectives


A rare feat of bipartisan cooperation came to fruition on 22 June 2016 when President Barack Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (HR 2576). (1) Named for the late Senator Lautenberg (D-NJ), a lead sponsor of earlier bipartisan legislation on which the final law was based, HR 2576 reformed the Toxic Substances Control Act (TSCA), (2) which is the major federal law regulating the safety of industrial and consumer chemicals in the United States.

Early indicators suggest the new law will more effectively protect people--including vulnerable populations such as children and pregnant women--than the old law it replaces. But stakeholders are watching closely to see if the changes really do live up to their promise.

A History of Dysfunction

TSCA was passed in 1976 with the intent of giving the EPA broad powers to protect the public and the environment from potentially dangerous industrial chemicals in U.S. commerce. (3) Importantly, TSCA's purview did not extend to certain types or uses of chemicals that were already regulated by other laws. Pesticides, for instance, were regulated by the Federal Insecticide, Fungicide, and Rodenticide Act, while food additives, pharmaceuticals, and certain personal care products were regulated by the Federal Food, Drug, and Cosmetic Act. (4)

In passing TSCA, Congress attempted to create a regulatory system for evaluating the safety of industrial chemicals and for restricting uses when necessary to safeguard public health. Empowered by the law, EPA officials could theoretically compel companies to provide health and environmental information to fill critical data gaps. Moreover, TSCA gave them the power to regulate the manufacture, processing, distribution, use, and disposal of chemical substances found to present an "unreasonable risk" of injury to health or the environment (5)--a term the law never specifically defined. (6)

But in practice, TSCA was dysfunctional, prompting calls for reform that began decades ago. At a 2009 meeting of the Commonwealth Club of San Francisco, then--EPA administrator Lisa Jackson captured longheld sentiments by stating, "Not only has TSCA fallen behind the industry it's supposed to regulate, it's been proven an inadequate tool for providing the protection against chemical risks that the public rightly expects." (7)

Two years after that meeting, Bill Chameides, then dean of the Duke Nicholas School of the Environment, blogged that under TSCA the EPA had issued regulations to control just nine of the tens of thousands of industrial chemicals in U.S. commerce. As to the rest of the chemicals, he wrote, "Well ... they're out there." (8)

The reasons for TSCA's failings are numerous and complex. But according to Lynn Bergeson, managing partner in the Washington, DC--based law firm Bergeson & Campbell, a key factor was that the legal hurdles the EPA had to clear before taking action under the law were excessively burdensome.

Consider what happened when the EPA tried to issue a comprehensive ban on asbestos-containing products in 1989. (9) EPA officials were in this case motivated by evidence showing that asbestos is both a pulmonary toxicant and a known human carcinogen. (10) But the chemical and consumer products industries were fiercely opposed to a ban, and they sued to prevent it. The resulting case--Corrosion Proof Fittings v. EPA-resulted in a seminal 1991 ruling against the EPA by the U.S. Court of Appeals for the Fifth Circuit, which concluded that by proposing to simply ban asbestos, the agency had failed to adequately consider less burdensome ways to reduce the risk of asbestos exposure, such as labeling products that contain it. (11)

Plaintiffs and others who felt that public exposures to asbestos were negligible hailed the decision. (12) However, Richard Denison, a lead senior scientist with the Environmental Defense Fund (EDF), says the decision further crippled the EPA's already hamstrung authority under the law. …

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