Tuesday, January 12, 2010

Resurrecting TSCA

Congress enacted the Toxic Substances Control Act (TSCA) in 1976 to protect consumers from the production and marketing of dangerous non-agricultural chemicals (agricultural chemicals are regulated separately under another federal statute, FIFRA). TSCA provides that before a new chemical can be produced or imported in substantial quantity for use in the United States (and before existing chemicals can be put to new uses), the manufacturer or importer must provide sufficient test data to satisfy the Environmental Protection Agency (EPA) that it will not present an unreasonable risk of injury to health or the environment. If the EPA finds that the chemical is reasonably safe, it is then added to the "TSCA Inventory" of approved chemicals. TSCA also provides a delisting process for chemicals on the inventory that subsequent data suggest are unsafe. However, this delisting process has been only rarely used. In fact, according to this report in Scientific American, out of more than 80,000 chemicals currently on the TSCA Inventory, only 5 have ever been delisted and, therefore, banned from production, sale, and use in the US.

That's why it was such a surprise when, on December 30, 2009, EPA announced that it was establishing a special "chemicals of concern" list, including two chemicals: polybrominated diphenyl ethers (PBDEs) and phthalates (used in making plastic toys). In addition, it adopted separate "action plans" for two other chemicals: long-chain perflourinated chemicals (PFCs) and short-chain chlorinated paraffins (SCCPs). It is expected that all four of these chemicals, some of which are already being phased out pursuant to cooperative agreements between EPA and industry, will ultimately be removed from the TSCA Inventory.

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