Is TSCA Reform on the Way?

The Toxic Substances Control Act or TSCA (sometimes pronounced “Tosca,” like the opera) is one of the worst-written statutes of all time.  It seems as if every section contains a cross-reference to another section, which in turn requires recourse to yet another sentence to be understood, making the statute completely opaque.  A last-minute compromise, the statute calls equally for safety and for protection of the chemical industry.  Not surprisingly, it’s been a complete dud in practice.  As the Washington Post reports, there are encouraging signs that reform might be on the way:

To address those concerns, the Lautenberg-Vitter “Chemical Safety Improvement Act of 2013″ would give the EPA a number of new tools:

–The EPA would review all actively used chemicals and label them as either “high” or “low” priority based on their potential risk to human health and the environment. The agency would then subject high-priority chemicals for further review.

–Regulators would no longer have to go through a long, protracted rule-making process to get information from companies about their chemicals.

–The EPA will also have greater flexibility to take action on chemicals deemed unsafe, ranging from labeling requirements to outright bans on things like asbestos.

This proposal seems to have the support of the industry and qualified support from environmentalists.

You might think that the industry would be happy with the current dysfunctional statute. But some states have started to fill the regulatory gap anyway, and many chemicals are exported to Europe where they are subject to more effective regulation under the REACH directive.  (Here is a paper discussing some lessons of REACH for the U.S.)  REACH has sparked similar efforts elsewhere: for instance, Korea has just adopted its own version of REACH. So a more credible U.S. regulatory scheme may not actually be that much of a burden for industry and might help discourage more vigorous attacks on the industry. Whatever the reason for industry’s willingness to get on board, there’s no doubt that TSCA needs reform. Let’s hope the current effort bears fruit.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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