With the passage of the Toxic Substances Control Act, the Environmental Protection Agency gained the important power to regulate toxic chemicals that pose a possible threat to the environment or to human health.
Some seven million chemical compounds are known to exist, sixty thousand of which are used commercially. About one thousand new chemicals are put into production every year and introduced into the environment. The Toxic Substances Control Act (TSCA) was enacted in order to give the government the authority to regulate the use of a substance that can harm human health or the environment. The Environmental Protection Agency (EPA) was charged with reviewing risk information on all new chemicals before they are manufactured or imported and with deciding whether they should be admitted, controlled, or banned.
In the 1970’s, a considerable number of newspaper accounts reported that some commonly used chemicals were associated with such problems as cancer, birth defects, and sterility. A milestone in the regulation of environmental hazards was the passage of the Toxic Substances Control Act, which represented the federal response to a growing awareness of and concern over the existence of hazardous chemicals in the environment that were not subject to regulation or testing under any of the other environmental laws.
The act was preceded by the Clean Air Act
Enactment of the TSCA had been considered for several years by Congress, which recognized that the technological revolution in the chemical industry had led to a tremendous increase in the number and development of toxic chemicals. Congress responded to chemical pollution controversies, such as those regarding polychlorinated biphenyls
The TSCA gave the EPA four tools to use in regulating toxic chemicals: the authority to require that chemicals suspected of posing risks be tested; a procedure to screen all new chemicals for possible risks; a framework for gathering information on existing chemicals; and the authority to regulate those chemicals found to be hazardous. The TSCA regulated an estimated sixty thousand chemicals manufactured for commercial purposes and several million chemicals used in research and development. For the first time, the entire chemical industry was put under comprehensive regulation. The law applied to almost every facet of the industry, including product development, testing, manufacturing, distribution, use, and disposal. In addition, importers of chemical substances were treated the same as domestic manufacturers, which extended the EPA’s control to certain aspects of international trade.
There were two parts to the TSCA. One part involved the gathering of information about chemicals, the other involved the control of chemicals. A large portion of the TSCA addressed the gathering of information to enable the EPA to decide whether certain substances should be controlled. Companies were required to keep records about the chemicals they used; some records were made available to the EPA when it conducted inspections, while other records needed to be reported to the EPA on a regular basis. The most stringent regulations designated by the TSCA were those that affected PCBs, which were singled out by Congress because of their high toxicity, widespread use, and longevity. One of the primary functions of the TSCA was to regulate the manufacture, use, and distribution of PCBs.
Section 7 of the TSCA granted the EPA the authority to use judicial means against an imminently hazardous substance or mixture. This provision could be used to require PCB and dioxin cleanups, although the EPA could also use the Comprehensive Environmental Response, Compensation, and Liability Act
The first act of the EPA under the TSCA was to make an inventory of all chemicals manufactured, imported, or processed in the United States. The inventory was based on reports from manufacturers, importers, processors, and users of chemical substances, which they were required to submit to the agency. The TSCA defined a chemical substance as any organic or inorganic substance of a particular molecular identity, as well as any combination of such substances occurring in whole or in part as a result of a chemical reaction or in nature. The administrator of the EPA was obliged to compile and keep a current list of all such substances manufactured or imported in the United States. After the inventory was taken, the premanufacture provisions of the TSCA went into effect. Subject to certain exemptions and time requirements, no new chemical substances or significant new chemical use could be introduced without a notice of intention filed with the EPA at least ninety days before the intended manufacture or use. The notice included information on all known data on health or environmental effects. The notice requirement was essential because it provided the administrator with an opportunity to evaluate the information and determine whether the manufacture or use should be permitted, limited, or delayed.
The Toxic Substances Control Act was an enabling act. As such, it conferred authority from Congress to an administrative agency to regulate the manufacture, use, and disposal of toxic substances. Congress mandated comprehensive regulation of chemicals through the TSCA. Manufacturers and processors were made subject to regulation if they emitted chemicals into air, water, or land. The TSCA recognized that disposing of many human-made chemicals could involve risks to natural resources (such as groundwater, the source of much of the drinking water) and to humans. The TSCA gave the EPA broad powers to regulate the disposal of all toxic organic chemicals. The EPA had the authority to regulate certain chemicals from their development to manufacture and finally to disposal. The TSCA required the EPA to inventory the approximately fifty-five thousand chemicals involved in interstate commerce, and it required chemical manufacturers to notify the EPA of all new chemicals produced, so that the EPA could keep a current inventory. This requirement was called the Premanufacture Notice (PMN).
Once the EPA had all the information it needed about a toxic chemical that presented an unreasonable danger to people or the environment, it was authorized under the TSCA to stop the manufacture. This authority implied great regulatory power over the chemical industry, but it applied only to toxic chemicals.
The Toxic Substances Control Act was a compromise between a rigid preclearance regulatory scheme, such as that contained in pesticide and drug laws, and a system of notice and selective interdiction. As such, the act became the object of frequent criticism from proregulation environmental groups as well as from the chemical industry, which was opposed to government regulation. The industry complained about red tape, the cost of compliance, and the potential for losing trade secrets as a result of the reporting requirements. The environmental groups complained that the EPA was slow to regulate. By 1986, only five chemical classes had been regulated: PCBs, CFCs, phthalate esters, chlorinated benzenes, and chloromethane. Even the EPA complained about the TSCA. Most of the EPA’s complaints were in response to delayed regulation as a result of a lack of staff and foot-dragging by private industry in supplying information on whether a chemical is toxic.
-
Bergeson, Lynn L. TSCA: Toxic Substances Control Act. Chicago: American Bar Association, 2000. Provides fundamentals of the environmental legislation in an easy-to-use format. -
Freedman, Warren. Federal Statutes of Environmental Protection. New York: Quorum Books, 1987. Provides information on all U.S. environmental statutes implemented before 1987. Includes commentary on the TSCA and its legislative history. -
Grad, Frank. Treatise on Environmental Law. New York: Matthew Bender, 1994. Comprehensive resource on all aspects of environmental law, including information on how courts have interpreted particular pieces of legislation. Presents the full text of the TSCA as well as revisions that have been added to it. -
O’Leary, Rosemary. Environmental Change: Federal Courts and the EPA. Reprint. Philadelphia: Temple University Press, 1993. Discusses how the courts interpreted the TSCA and other environmental laws. -
Powell, Mark R. Science at EPA: Information in the Regulatory Process. Washington, D.C.: Resources for the Future, 1999. Uses case studies to examine the EPA and its methods for acquiring and using science for policy making. -
The Toxic Substances Control Act. Executive Legal Summary 98. Chesterland, Ohio: Business Laws, 1989. Provides an excellent legal summary of the TSCA and how corporations can comply with the regulations it contains. -
Worobec, Mary Devine. Toxic Substance Control Primer: Federal Regulations of Chemicals in the Environment. 2d ed. Washington, D.C.: BNA Books, 1986. Explains provisions of the major laws that affect chemicals in the environment. Includes information on the regulations and applications of the TSCA.
U.S. Congress Protects Public Against Hazardous Waste in Transit
United States Bans PCBs
“Cradle-to-Grave” Legislation Covers Hazardous Wastes
Toxic Waste Is Discovered at Love Canal
Superfund Is Established to Pay for Hazardous-Waste Cleanup
Citizens’ Clearinghouse for Hazardous Waste Is Founded
U.S. Congress Requires Governments to Inform the Public About Toxic Pollutants
Medical Waste Washes onto U.S. Atlantic Beaches