March 01, 2015

Removing the Roadblocks to TSCA Reform

Lawrence E. Culleen

At the time of its enactment nearly forty years ago, the Toxic Substances Control Act (TSCA) represented the cutting edge of environmental legislation. The new statute offered compelling, cross-media and “cradle-to-grave” authority providing the Environmental Protection Agency (EPA) an opportunity to fill various gaps left by media-specific environmental laws of the early 1970s, such as the Clean Air Act and Clean Water Act. Congress handed EPA a comprehensive capacity to collect information on chemical substances in commerce, to compel the producers and users of such substances to perform testing of the substances’ potential effects on human health and the environment, and to take action to mitigate risks presented by such substances. In addition, TSCA’s requirements concerning new chemicals that had not yet entered commerce embodied a groundbreaking principal that later would become the cornerstone of the pollution prevention ethos. Specifically, section 5 of TSCA established that new substances should undergo a review by EPA even before commercial manufacture would commence, during which EPA would be authorized to act by an administrative order to restrict or prohibit the manufacture and use of a new substance if, in the absence of data, EPA determined the new substance or the activities proposed may present an unreasonable risk to human health or the environment.

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