Toxic Substances Control Act of 1976
|Long title||An Act to regulate commerce and protect human health and the environment by requiring testing and necessary use restrictions on certain chemical substances, and for other purposes.|
|Enacted by the||94th United States Congress|
|Effective||October 11, 1976|
|Stat.||90 Stat. 2003|
|Title(s) amended||15 U.S.C.: Commerce and Trade|
|U.S.C. sections created||Chapter 53 §§ 2601–2629|
|P.L. 99-519 (1986); P.L. 100-551 (1988); P.L. 101-637 (1990); P.L. 102-550 (1992)|
The Toxic Substances Control Act (TSCA) is a United States law, passed by the United States Congress in 1976, that regulates the introduction of new or already existing chemicals. It grandfathered most existing chemicals, in contrast to the Registration, Evaluation and Authorization of Chemicals (REACh) legislation of the European Union. However, as explained below, the TSCA specifically regulates polychlorinated biphenyl (PCB) products.
Contrary to what the name implies, TSCA does not separate chemicals into categories of toxic and non-toxic. Rather it prohibits the manufacture or importation of chemicals that are not on the TSCA Inventory (or subject to one of many exemptions). Chemicals that are listed on the TSCA Inventory are referred to as "existing chemicals". Chemicals not listed are referred to as new chemicals. Generally, manufacturers must submit premanufacturing notification to the U.S. Environmental Protection Agency (EPA) prior to manufacturing (or importing) new chemicals for commercial purposes. There are notable exceptions, including one for research and development, and for substances regulated under other statutes such as the Federal Food, Drug, and Cosmetic Act and the Federal Insecticide, Fungicide, and Rodenticide Act. New chemical notifications are reviewed by the agency and if the agency finds an "unreasonable risk to human health or the environment," it may regulate the substance in a variety of ways, from limiting uses or production volume to outright banning them.
Since May 22, 2013, Senate Bill 1009 has been pending in Congress to reform TSCA, entitled the Safer Chemical Improvement Act. This would be the first major overhaul in many years.
Sections of TSCA
The TSCA is found in United States law at 15 USC (C. 53) 2601-2692. It is administered by the EPA. Subchapter I of the TSCA, "Control of Toxic Substances," is the original substance of the 1976 act, PL 94-469, including regulation of polychlorinated biphenyl (PCB) products.
Subchapter II of the TSCA, "Asbestos Hazard Emergency Response," was enacted by the U.S. Congress in 1986 under PL 99-519 and amended in 1990 under PL 101-637. It authorizes the EPA to impose requirements for asbestos abatement in schools and requires accreditation of those who inspect for asbestos-containing materials.
Subchapter III of the TSCA, "Indoor Radon Abatement," was enacted by the U.S. Congress in 1988 under PL 100-551. It requires the EPA to publish a guide about radon health risks and to perform studies of radon levels in schools and federal buildings.
Subchapter IV of the TSCA, "Lead Exposure Reduction," was enacted by the U.S. Congress in 1992 under PL 102-550. It requires the EPA to identify sources of lead contamination in the environment to regulate amounts of lead allowed in products, including paint and toys, and to establish state programs that monitor and reduce lead exposures.
Under 15 USC 2605(e) the TSCA specifically regulates PCBs. Subsection (2)(A) provides that after January 1, 1978, "no person may manufacture, process or distribute in commerce or use any polychlorinated biphenyl in any manner other than in a totally enclosed manner." This section of the TSCA also authorizes the EPA to regulate disposal of PCBs.
Acting under the TSCA and other laws, the EPA has published regulations for PCB disposal and set limits for PCB contamination of the environment. It has engaged in protracted negotiations with the U.S. General Electric company and other firms for remediation of sites contaminated with PCBs such as the upper Hudson River.
TSCA and the EPA
The Toxic Substances Control Act of 1976 mandated the EPA to protect the public from "unreasonable risk of injury to health or the environment" by regulating the manufacture and sale of chemicals. This act does not address wastes produced as byproducts of manufacturing, as did the Clean Water and Air Acts of the era. Instead, this act attempted to exert direct government control over which types of chemicals could and could not be used in actual use and production. For example, the use of chlorofluorocarbons in manufacturing is now strictly prohibited in all manufacturing processes in the United States, even if no chlorofluorocarbons are released into the atmosphere as a result. The types of chemicals regulated by the act fall into two broad categories: existing and new. New chemicals were defined as "any chemical substance which is not included in the chemical substance list compiled and published under [TSCA] section 8(b)." This list included all of chemical substances manufactured or imported into the United States prior to December 1979. This existing chemical list covered 99% of the EPA's mandate in this bill, including some 8,800 chemicals imported or produced at quantities above 10,000 pounds. Existing chemicals include any chemical currently listed under section 8(b). The distinction between existing and new chemicals is necessary as the act regulates each category of chemicals in different ways.
Regulation of existing chemicals
Though tasked with protecting the public from dangerous and potentially carcinogenic substances, some 62,000 chemicals were never tested by the EPA because they were not considered an "unreasonable risk." This gap in testing effectively grandfathered these chemicals into the TSCAs existing chemicals list. Testing and research on these chemicals is virtually non-existent, with only 200 of the more than 60,000 existing chemicals tested directly by the EPA.
The EPA has had only limited success controlling the chemicals they have tested and deemed dangerous to the public health. In fact, the agency has been successful in restricting only five chemicals (PCBs, chlorofluorocarbons, dioxin, asbestos, and hexavalent chromium) in its 35 year history, and the ban on asbestos was overturned in 1991. Many environmental groups, such as Natural Resources Defense Council, complain that the EPA is nearly powerless to take regulatory action against dangerous chemicals, even those known to cause cancer or other serious health effects.
Regulation of new chemicals
The EPA has a better record when regulating newly created chemicals. Companies must first notify the EPA of their intention to manufacture a new chemical not listed in the 1976 act by using a Pre-Manufacturing Notice (PMN.) No safety information is required to be included in the PMN, so the EPA must rely on computer modeling to determine whether the new chemical "may prevent an unreasonable risk." If the EPA does not act to block manufacture of the new chemical within ninety days, or the EPA passes the product, the chemical may be legally marketed.
Criticisms of the TSCA
The EPA's use of the TSCA to regulate dangerous chemicals is seen as a failure by many, including the EPA's Office of the Inspector General, who called the bill "inconsistent and presents a minimal presence." in a report dated February 17, 2010. The agency also criticized the process by which the EPA handles new TSCA cases in the same report, claiming it is "predisposed to protect industry information rather than to provide public access to health and safety studies." The report further acknowledges that trade secrets are preventing effective testing. Sometimes the EPA does not even know what chemical the TSCA application refers to, and cannot report any problems because "health and safety data are of limited value if the chemical the data pertain to is unknown."
Other groups concerned with TSCA's lack of efficacy include the Physicians for Social Responsibility, the U.S. Public Interest Research Group, the Environmental Defense Fund, the Lung Cancer Alliance and the Asbestos Disease Awareness Organization representing more than 11 million people nationwide. These diverse groups, under the umbrella of the National Resources Defense Council however are displeased with the new draft bill written by deceased Senator Lautenberg in May 2013. The group is calling for greater oversight and reporting of health hazards of chemicals contained in everyday products.
However, chemical manufacturers and their trade associations would prefer a weaker version of TSCA that pre-empts state law, due to the more than 40 different state government regulations on toxic chemicals. In addition, businesses would like a standard that can be applied uniformly, rather than having to report many different sets of requirements to the individual states where the companies do business.
For additional information on TSCA, see NTIS.
2013 Reform Bills and Preemption Controversy
In May 2013, efforts to revamp TSCA were introduced in the U.S. Senate. Senate Bill 1009, introduced by Senators Vitter (R-LA) and Lautenberg (D-NJ), and co-sponsored by a number of Senators. This would be the first major overhaul of the act in many years.
Some environmental and victim's groups however are highly critical of the bill as Section 15 contains broad language that may preempt all state personal injury or environmental litigation relating to any chemical listed on the registry.
Example of chemical inventories in various countries and regions
- Verordnung (EG) Nr. 1907/2006 (REACH)
- AICS - Australian Inventory of Chemical Substances
- DSL - Canadian Domestic Substances List
- NDSL - Canadian Non-Domestic Substances List
- KECL (Korean ECL) - Korean Existing Chemicals List
- ENCS (MITI) - Japanese Existing and New Chemical Substances
- PICCS - Philippine Inventory of Chemicals and Chemical Substances
- TSCA - US Toxic Substances Control Act
- SWISS - Giftliste 1
- SWISS - Inventory of Notified New Substances
- Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) - EU legislation
- Dangerous Substances Directive (67/548/EEC) - EU legislation
- Kashinhou - Japanese legislation
- Chemical Facility Anti-Terrorism Standards (CFATS) - Homeland security laws for chemical storage
- EPA Makes Chemical Information More Accessible to Public For the first time, TSCA chemical inventory free of charge online (March 15, 2010)
- U.S. Environmental Protection Agency, "Summary of the TSCA law and regulations".
- U.S. Environmental Protection Agency, "Announcement of agreement with General Electric to conduct Hudson River dredging", October 6, 2005.
- Schapiro, Mark, "New Power for 'Old Europe'". The Nation, December 27, 2004, 11-16.
- Status of Senate Bill No. 1009, authored by Sen. Frank Lautenberg (D-NJ) on May 22, 2013
- "EarthTalk: Toxic Substances Control Act of 1976? Toilet paper rolls?". Blastmagazine.com. Retrieved 2011-05-26.
- "What is TSCA?". Saferchemicals.org. 2010-07-29. Retrieved 2011-05-26.
- "Congressional Digest". Congressional Digest. Retrieved 2011-05-26.
- "Asbestos Ban and Phase Out | Asbestos | US EPA". Epa.gov. Retrieved 2011-05-26.
- "Powered by Google Docs". Docs.google.com. Retrieved 2011-05-26.
- "Reforms Recommended For EPA Chemicals Program | Latest News | Chemical & Engineering News". Pubs.acs.org. Retrieved 2011-05-26.
- To reauthorize and modernize the Toxic Substances Control Act, and for other purposes, S.B. No. 1009, March 22, 2013
- Boxer Doubts Passage of Bipartisan TSCA Reform Bill Without Overhaul, June 19, 2013, Trevor's Trek Foundation
- Wave Of Opposition To Senate Chemicals Bill Swells From Public Interest Groups, Legal Scholars
- Regulated Chemicals Information - American Chemical Society