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2. History of TSCA

The Toxic Substances Control Act (TSCA), was passed by the United States Congress and signed into law by President Gerald Ford on October 11, 1976, after many years of negotiation between different factions of the government and chemical producers. As one of the most important pieces of legislation ever passed in the United States, TSCA authorized the Environmental Protection Agency (EPA) to regulate new and existing chemicals. TSCA was response to Congress’ growing concerns about the unreasonable risks that chemicals pose to human health and the environment. TSCA limits the manufacture, processing, commercial distribution, use, and disposal of chemical substances including polychlorinated biphenyls (PCBs), asbestos, radon and lead-based paint.

2.1 The 1971 Council on Environmental Quality Report

In a 1971 report, the Council on Environmental Quality CEQ urged the Federal government to regulate toxic substances in the U.S. CEQ explained that existing regulation was not sufficient enough to protect human health and the environment. For example, the existing law only took effect after the damages were done and did nothing to prevent future damage. As Johan Quarles, the EPA Deputy Administrator, later explained during a 1975 Congressional Testimony, "While some authority exists to control the production of certain categories of toxic substances, such as pesticides, drugs, and food additives, most existing Federal authorities are designed to prevent harmful exposure only after the substances have been introduced into production.” In Order to adequately regulate what chemical should enter the environment, CEQ recommended that the government create a more comprehensive chemical policy to identify and control the chemical that are manufactured, produced, and used in the U.S economy. Specifically, CEQ recommended that TSCA strengthen government oversight by requiring the following measures: First, manufacturers should notify officials when they use or produce new chemicals, or plan to sell a significant volume of old chemicals. Second, producers should test their chemicals and report data to officials on the quantities, uses, physical and biological properties, and any other information is necessary for assessing hazardous materials. Lastly, with this information, the government should disclose any information about the health effects caused by dangerous chemicals to the public.

2.2 Congress’ Response to CEQ and the Drafting of TSCA

The U.S. Congress agreed with CEQ that additional authority is required to test chemicals in order to determine their effect, and responded to the CEQ’s recommendation by proposing many House and Senate bills between 1972 and 1973. Policy makers were also aware that the cancer mortality rate had increased and recognized that the cause of the increase was related to the rise of industrial chemicals in consumer products and the environment. As a result of these concerns, Congress concluded the risk of chemical exposure to the public were serious enough to warrant swift legislative action. Three key assumption informed Congress approach to drafting a chemicals control policy. First, in order to limit the risks that chemicals pose to human health and the environment, it would be important to be proactive in understanding toxic substances and use preventive measures. Second, toxic risk should be approached in “holistic rather than fragmented” manner. Third, it is important to collect as much information as possible about the toxicity of chemical and the risk associated with them. Although there was much support for policy to address public health risks from chemical exposure, the law was stalled at the last minute because of disagreement over the proper scope of chemical screening of chemicals prior to commercial production. However, a series of environmental disasters such as contamination of “Hudson River and other water ways by polychlorinated biphenyl (PCBs), the threat of stratospheric ozone depletion from chlorofluorocarbon (CFC) emissions, and contamination of agricultural products by polybrominated biphenyls (PBBs) in the State of Michigan" provided a clearer picture of the costs of weak regulation over toxic substances. Subsequently the legislation passed in 1976. Congress designed TSCA to empower the EPA to collect more information on chemicals and their potential dangerous effect on human health and the environment. As a result, TSCA's Jurisdictional Scope is extremely broad. Congress’s definition of chemicals substances includes “any organic or inorganic substance of a particular molecular identity,” and “any combination of such substances occurring in whole or in part as a result of a chemical reaction or occurring in nature” as well as “any element or uncombined radical.". These chemicals are found in children’s products (e.g. toys) cleaning products, personal care products, furniture, electronics, food and beverage containers, building materials, and car interiors. The law attempts to oversee the manufacturing, processing, disturbing, using and or disposing of such chemical substances. TSCA directs EPA to use the least burdensome method to reduce chemical risk to reasonable levels while taking into consideration the benefits provided by the chemical product or process. Specifically, TSCA directed the EPA as follows:

• • "Title I of the original statute establishes the core program, directs EPA to control risks from polychlorinated biphenyls (PCBs), and bans certain activities with respect to elemental mercury.
• • Title II directs EPA to set standards for asbestos mitigation in schools and requires asbestos contractors to be trained and certified.
• • Title III directs EPA to provide technical assistance to states that choose to support random monitoring and control.
• • Title IV provides similar assistance with respect to abatement of lead-based paint hazards."

2.3 Implementation of TSCA

There have been many challenges in the implementation of TSCA. First, according to David Markell, Professor of Law at Florida State University, TSCA and existing regulation have “an ―after-the-fact focus” that fails to protect individuals after toxic substances are released in products and is media focused without addressing how to control pollution within communities. Second TSCA implementation is difficult because of the number of chemicals in the US market and high costs associated with fully assessing the toxic impacts of so many chemicals on human health and the environment. According to Pure Water Alternatives, in 1977, the American Chemistry Council listed over 4 million toxic substances in production in the U.S. In 1970s there were close to 62,000 chemicals on the market that were covered by TSCA . TSCA “grandfathered” these 62,000 chemicals, allowing these substances to remain on the market without assessing toxic impacts. New chemicals; however, would be subject to review for health and environmental risks. Since then, it is estimated that new chemicals have been introduced at a rate of 6,000 per-week but the list of chemicals registered under TSCA has only grown to roughly 84,000. . Furthermore, TSCA only covers certain chemical substances so not, all potentially hazardous chemicals are regulated. The EPA has only required approximately 200 of these 84,000 chemicals to be tested, and of the 22,000 chemicals introduced since 1976, chemical manufacturers have produced very little data for the EPA on potential health and/or environmental impacts. . Third, even though TSCA gives permission to EPA to test the existing chemicals through the EPA’s own rule making process, the EPA has difficulty obtaining the data needed to determine the risks of chemicals. The EPA has concluded that testing is very costly and it is difficult to collect information from industries about the risks of chemicals. Even though EPA is supposed to require testing if chemicals being produced in substantial quantities. EPA relies on industry to test chemicals only if the industry suspects that the manufacturing, production or use of a chemical can pose a serious danger to public health. Even though EPA is supposed to require testing if chemicals being produced in substantial quantities. <http://www.law.cornell.edu/uscode/text/15/2603>.</ref>, EPA relies on industry to test chemicals only if the industry suspects that the manufacturing, production or use of a chemical can pose a serious danger to public health. The only information required from chemical producer is limited to: Chemical identities, names, and molecular structures, Categories of use, Amount manufactured and processed for each category of use, descriptions of byproducts resulting from manufacture, processing use, and disposal, Environmental and health effects, Number of individuals exposed, Number of employees exposed and the duration of exposure; and Manner or method of chemical disposal. In order to obtain more information related to chemical risks, the EPA must ask chemical companies to do testing. This occurs either by (1) mutual agreement, or (2) voluntary industry efforts under the HPV Challenge Program. EPA has also created the Sustainable Futures (SF) Initiative model, which allows the companies to do a voluntary test of their product that might pose risks to human health and environment. Through this initiative, EPA hopes to reduce the risk, to produce safer chemicals in short amount of time, and to save money.. It intends to yield better results in bringing safer chemicals into the market.