An overview of the Toxic Substances Control Act & its major loopholes.

1. TSCA
The Toothless Tiger
by Craig Collins, Ph.D. ©

2. Toxic Chemicals: Creeping Crisis
Between 1 & 2 thousand new
chemicals are marketed every
year.
• Many are dangerous at extremely
low doses.
– Some are harmful in parts per trillion.
(1: 1,000,000,000,000)*
*A stack of a trillion dollar bills lying on it side
would circle the Earth 2.73 times.
• Latency: Harmful effects may not
appear for decades after exposure.
• Toxic substances bioaccumulate.
– Humans are the top of the food chain.
• Toxic substances often persist
– They don’t break down for decades.
– When they do, they often produce
toxic by-products.

3. An Ounce of Prevention?
• In 1976, Time magazine
warned readers that,
“chemists are introducing
new compounds at the rate
of more than 1,000 a year.”
It encouraged Congress to
enact a law that would
“carefully spot & screen
potentially hazardous
substances before they get
into the environment.”
• This preventative policy was
exactly what the Toxic
Substances Control Act
(TSCA, 1976) was
supposed to do.

4. TSCA: The Mother of All
Environmental Laws?
• In theory, TSCA possessed a
proactive, preventive
mandate of sweeping breadth
& scope.
TSCA’s Goal:
To restrict or ban
dangerous chemicals
before they are marketed
in specific products; used
in particular settings; or
transformed into

5. Lamed by Loopholes
• It took 4 years for
TSCA to make it
through
Congress.
• By then it was
riddled with
gaping loopholes.

6. But TSCA Failed Miserably--Why?
Problem #1) EXCLUSIONS:
Instead of screening ALL
chemicals…
• Lobbyists from the
pharmaceutical, nuclear
power, cosmetic, pesticide,
food & tobacco industries
insisted their products
should get a free pass
because they were already
covered in some way by
other statutes.
• Consequently, pesticides,
tobacco, nuclear material,
drugs, cosmetics & certain
food additives were all
excluded from TSCA’s
controls.

7. Regulating Old & New Chemicals
Problem #2) The
“Unreasonable Risk”
Loophole:
• TSCA gives EPA the authority
to control old & new
chemicals* that present an
“unreasonable risk of injury
to health or the
environment.”
– Unreasonable is a slippery legal
“wiggle-word” that chemical
company lawyers have used
time & time again to successfully
challenge chemical regulation in
court.
* Old chemicals (sec. 4) were on the market
before TSCA became law; new chemicals
(sec. 5) were produced after this.

8. Safe Until Proven Deadly
Problem #3)
The Testing Loophole:
– Under TSCA, industry does its
own testing on OLD chemicals.
• These tests have been shown to be
incomplete & fraudulent.
– Majority of IBT labs 10,000 plus tests found
to be “invalid.”
– EPA cannot do further tests unless it
can demonstrate that a chemical
may pose an unreasonable risk.
– But without further testing this is
very difficult to establish.
• The EPA has NO information on
80% of the 48,000 toxic chemicals
in its old chemical inventory.
• Less than 10% have been tested for
long term cancer, reproductive, or
mutagenic effects.

9. More Roadblocks After showing unreasonable
risk, the EPA must:
– Choose the least burdensome
regulation to reduce risks to a
reasonable level;
– Make sure that the benefits of
regulation outweigh the costs.
• The court ruled that EPA could
not ban asbestos although
10,000 Americans die each year
(about 30 deaths per day) from
diseases caused by it.
(Corrosion Proof Fittings v. EPA)

10. Rushing New Chemicals to Market
• TSCA requires industry to
notify the EPA 90 days
before releasing a new
chemical into the market.
– Notices* are suppose to
contain testing data, but tests
are not mandatory.
– If EPA does not ban, restrict
or require further testing
within 45 days, industry is free
to market the chemical after
90.
*These are called a Premanufacture Notices (PMNs)
Before EPA can ban, restrict or require further
tests, it must show that this new chemical may
present an unreasonable risk. But it usually
lacks the scientific basis to show this in court
because industry has not submitted enough
data.

11. Unknown Dangers…
• About 67% of the new chemicals
surveyed lacked ANY toxicity data;
85% had only limited testing data.
• Of the high-volume new chemicals
surveyed industry did not provide:
– Carcinogenetic tests for 63%.
– Reproductive toxicity data for 53%.
– Neurotoxicity tests for 67%.
– Immune system toxicity tests for 86%.
– Studies evaluating the impact on children
for 90%.
– Any tests for the synergistic impacts of
multiple chemicals.

12. Risk Assessment —> Risk Management
(1) Hazard Identification:
What health
problems are linked
to this chemical?
(2) Dose-Response Assessment:
What’s the relationship between the
level of exposure & the probability
& types of health effects?
(3) Exposure Assessment:
What levels of exposure are people
experiencing in the real world?
(4) Risk Characterization:
How serious are the dangers of
exposure to this chemical?
– Determine what levels
of exposure constitute
an “unacceptable risk.”
– This decision is based
on politics & economics
as much as health.

13. Another Approach To Risk
The Precautionary Principle…
Forces potential polluters to bear the burden of proof
that their activities are safe in an open, informed,
democratic policymaking process.• When an activity raises threats of
harm, precautionary measures should be
taken even if some cause & effect
relationships are not fully established
scientifically.
• The proponent of an activity, rather
than the public, should bear the burden
of proof.
• This principle must be applied in an
open, informed & democratic manner &
must include potentially affected parties.
• It must involve an examination of the
full range of alternatives--including no
action.