TSCA: The Hope, Belief and Bitter Disappointment Part I

Fact:  The Toxic Substance Control Act (TSCA) is considered a failed law.  Before exploring the Chemical Improvement Safety Act (CSIA), current legislature not yet passed that is intended to “fix” TSCA, AMD decided to review the history of TSCA and how it came to be ineffective.

In 1976 the US government took a step in the direction of overseeing the chemical industry which until that time had, for the most part, been unregulated.  The Environmental Protection Agency (EPA) was designated to be the overseer and its strength was to be in the form of the Toxic Substance Control Act (TSCA).  Prior to TSCA the EPA concentrated solely on waste entering the environment, waste that came from the production process.  TSCA was to allow the EPA to monitor new chemicals and chemicals to be used in a way significantly different from its original use (herein designated as New Chemicals).   The hope and belief was that the EPA would evaluate and regulate New Chemicals according to the risk they posed to the health of people and the environment.

The EPA’s role under TSCA was never intended to be a safety testing organization.  According to the TSCA legislature, the EPA could have had the authority to demand safety testing data from manufacturers and importers of New Chemicals.   For instance, Section 4 of TSCA empowers the EPA to require chemical manufacturers and processors to test chemical substances and mixtures and provide the data to the EPA.  Section 8(b) of TSCA allows for the creation of TSCA Inventory.  As new chemicals are commercially manufactured or imported, they are placed on EPA’s Inventory list.

Indeed, there were flaws from the beginning.  First was the presumption that chemicals already manufactured or imported and being used commercially were safe; and most of those chemicals enjoyed the position of being “grandfathered” in.  At the time, there were approximately 62,000 chemicals that were grandfathered in, which represented 99 percent by volume of the chemicals being used.  For those chemicals, it would be EPA’s responsibility to test for safety as deemed necessary.  Unfortunately, of those, only about 200 have been tested to date.

Secondly, the TSCA was never intended to have domain over all chemicals.  Fungicides, insecticides and rodenticides were at the time and still are covered under separate legislation.  One is called the Federal Insecticide, Fungicide and Rodenticide Act (F.I.F.R.A.), passed in 1947 and having since undergone countless amendments and change.  Legislature that empowers the FDA covers a wide variety of items ranging from food additives, safety and truthful food labeling, vaccines, prescription and nonprescription drugs, veterinary medicine and even medical devices.

A third substantial flaw is the EPA’s tolerance for secrecy that is built into Section 14 of the TSCA, Disclosure of Data.  This long section, in complicated language, demonstrates EPA’s extraordinary tolerance for secrecy in the guise of trade secrets.  In practice, access to the complete confidential inventory is prohibited.  The EPA will only release information of a confidential chemical on a chemical-by-chemical basis, and the requesting party must prove intent to manufacture or import in a formal submission of bona fide intent.  The Agency will release information only if the bona fide intent to manufacture or import is evaluated to be genuine.  An average citizen cannot get the information needed to make an individual determination of safety.

While the TSCA provides authority for the EPA to require additional safety testing from manufacturers and importers of New Chemicals, the agency must first prove that the subject chemical presents an unreasonable risk to human health or the environment during any phase of manufacturing, distribution, use, or disposal.  With only inadequate safety data provided by the manufacturer, making such a determination becomes virtually impossible.  Therefore, in practice the TSCA is largely dependent on the voluntary willingness of manufacturers and importers to participate and trust in their good faith to put public and environmental health and safety above financial considerations.

With TSCA, the EPA could have had the power to ensure the consumer of great safety of chemicals.  However, it would seem that the chemicals industry was waiting for just the right time to challenge the EPA’s authority under TSCA and in the 80s found its chance.  The asbestos issue was the perfect candidate for one very big reason:  there was no substitute material for asbestos and its fire-protection properties.  Additionally, the EPA made a strategic error by imposing a complete ban and not seriously addressing intermediate levels of regulation.  Ultimately, by a precedent-setting ruling handed down by the Fifth Circuit Appellate Court in 1991, the TSCA was done. 

Two decades have passed since that ruling and asbestos proved to be a much larger health hazard than the 1991 Fifth Circuit Appellate Court imagined.  During that time we have seen hundreds of thousands of liability claims against asbestos companies sending a large portion of them to bankruptcy court for protection.  This calamity certainly dwarfs the projected $250 million the Fifth Circuit calculated to be the chemicals industry’s loss if asbestos had been banned.  Also during these twenty years, the general public has understandably become skeptical about the safety of chemicals and very aware of the unseen chemicals that permeate their everyday lives. 

AMD  believes the best defense against toxins is to anticipate where they might be encountered.  Also important is to see beyond good intent to actual practice.  While one might expect that the EPA, through legislature like TSCA, acts in good faith, complications often exist to thwart their best intents. 

AMD and many alternative healthcare practitioners approach the toxicity problem from a diametrically opposed position from the composers of TSCA.  While the TSCA was constructed based on the premise that most chemicals are harmless unless proven unsafe, a common view forty or fifty years ago, AMD believes most chemicals have the potential to be greatly damaging unless and until they are proven safe.  People are more than a little concerned as they learn they are not protected from dangerous chemicals, certainly not by the EPA through TSCA.

Looking forward, AMD wonders if TSCA can be revived and if current proposed legislature, the Chemical Safety Improvement Act (CSIA), is sufficiently strong to make a difference.  From what AMD has learned from examining the progression of TSCA, we can take a fresh look at CSIA and help our customers evaluate if they can expect more protection from the onslaught of unknown, unnamed, undetectable toxins.