TSCA Deskbook

Vol. 27 No. 2

Reviewed by

Carolyne R. Hathaway, William K. Rawson, Ann Claassen, Julia A. Hatcher, TSCA Deskbook, Environmental Law Institute, Second Edition, 2012.

The TSCA Deskbook, part of the Environmental Law Institute’s Deskbook series, has been updated since the First Edition was published in 2007. It is a comprehensive resource for the Toxic Substances Control Act of 1976 (TSCA) and its related complex regulatory scheme.

TSCA was enacted “to prevent unreasonable risks of injury to health or the environment associated with the manufacture, processing, distribution in commerce, use, or disposal of chemical substances.” The enactment was prompted by the kepone contamination of the James River, as well as new awareness of the polychlorinated biphenyls (PCBS), together with a lack of any legal mechanism to regulate the introduction of new, potentially dangerous chemical products into the environment.

According to the introductory Chapter 1,

The importance of TSCA’s emphasis on regulating products, rather than wastes, and in filling important gaps in the environmental regulatory structure, may be even more apparent now than it was in 1976. Today’s strong policy emphasis on pollution prevention, and on avoiding environmental and health problems by aggressive front-end stewardship of chemical production and use, is similar to the philosophy embodied in TSCA. Nonetheless, many of TSCA’s regulatory tools are products of an earlier era and are being reexamined in light of emerging trends in risk management and pollution prevention policy.

As described in Chapter 1, TSCA employs the following regulatory mechanisms: (1) EPA is required to establish an inventory of chemical substances manufactured or processed in the United States and to promulgate rules for testing chemicals for potential risk; (2) new chemicals are subject to review; (3) TSCA authorizes the EPA to directly regulate chemicals; (4) TSCA requires reporting and recordkeeping; (5) importation of chemical substances in violation of TSCA is prohibited; (6) confidential business information is protected; and (7) TSCA provides authority for enforcement by the EPA, as well as citizen actions. Enforcement has been significant:

Despite TSCA’s relatively low profile compared with many other environmental statutes, the fines and penalties generated under TSCA have frequently exceeded fines and penalties levied under the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Clean Air Act (CAA), and the Federal Water Pollution Control Act (FWPCA).

Each facet of TSCA is covered in detail in the TSCA Deskbook. In addition, extensive appendices are included, comprised of the text of TSCA and numerous related EPA guidance documents, policies, and requirements.

The final chapter of the book, “The Future of TSCA,” indicates that there has been considerable debate about amending TSCA. The authors note:

TSCA’s core provisions in Title I have not been amended since TSCA was enacted in 1976. . . . There now appears to be consensus among stakeholders that some “reform” or “modernization” of TSCA is needed, and the implementation of a new chemical management program in Europe, known as REACH, has provided added impetus to the calls for revisions to TSCA. Congressional hearings on “TSCA reform” have been held, and draft bills have been introduced in the Senate and House of Representatives. [However, t]he principles that have been articulated by EPA and various stakeholders reflect common ground, but substantial differences in opinion concerning how principles should be turned into legislation also have been expressed, and more differences are likely to surface as any draft legislation moves forward.

The authors conclude, “Based on legislative proposals that have been put forward thus far, any ‘modernization’ of TSCA likely will focus on certain key issues and leave significant protections of the statute, implementing regulations, and related EPA Guidance documents largely unaffected.”

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