TSCA: From Inception to Reform
Calls for chemical reform have gained momentum at the state and national levels. While nearly everyone involved can agree that change is needed, debates center on whether or not the Toxic Substances Control Act (TSCA) can still work as the backbone of a chemicals policy in the United States. But how did TSCA come to be?
In this oral history project we employ in-depth interviews with individuals involved in the process of writing and negotiating TSCA to gain their perspective on the law, what it has done, and whether or not it can continue to work in the 21st century.
What Is TSCA?
The Toxic Substances Control Act of 1976 (TSCA) authorizes the U.S. Environmental Protection Agency (EPA) to require industry reporting, record-keeping, and testing of chemical substances in commerce. TSCA also requires the EPA to evaluate the risks of chemical substances and, when proven necessary, requires risk-management actions ranging from labeling to banning. In particular, TSCA authorizes the EPA to
- Require manufacturers, importers, and processors to test their chemicals when risks or exposures of concern have been identified.
- Require manufacturers or importers to submit pre-manufacture notices for new chemicals, subject to EPA review.
- Create standards for labeling, regulating, and disposing of chemicals known to cause “unreasonable risk of injury to health or the environment.”
- Request data on the properties, manufacture, exposure, and health and environmental effects of existing chemicals and require industry record-keeping.
- Regulate specific chemicals known to cause harm, including polychlorinated biphenyls (PCBs), asbestos, radon, and lead-based paint.
The History of TSCA
After a series of pesticide and worker-related chemical scares in the late 1960s and early 1970s, the American public and government leaders became increasingly concerned with chemical safety. In 1970 J. Clarence (Terry) Davies and Charles L. Lettow, staff members of the newly formed President’s Council on Environmental Quality, drafted a chemicals bill to address these concerns. The draft bill received sharp resistance from the Department of Commerce and the legislative clearinghouse, the Office of Management and Budget.
A weakened bill was introduced in Congress in spring 1971, but the initiative died in 1972. Over the next four years the bill was repeatedly introduced. Despite objections from industry leaders and many members of the House of Representatives, TSCA became law in 1976.
An Office of Toxic Substances (OTS) had already been created in the EPA, and the OTS spent the remainder of the 1970s and the beginning of the 1980s creating technological and administrative infrastructures and writing rules to enact the new law. Industry proved surprisingly cooperative about the new chemical provisions, partially because the OTS tended to interpret TSCA cautiously, allowing industry to abuse claims of confidential business information.
But that sense of cooperation did not last long. The OTS’s 10-year effort to regulate asbestos using TSCA came to an end when a landmark case, Corrosion Proof Fittings v. EPA, overturned the EPA’s asbestos ban. After the case the OTS determined that Section 6—which gives the EPA authority to regulate chemicals that pose a risk of harm—was too burdensome to use, and much of TSCA’s regulation became voluntary.
Now without the authority to regulate chemicals, in 1990 the OTS refocused its efforts on revitalizing the information-gathering component of the existing chemicals program. They developed a sophisticated chemical-review program that modeled and evaluated toxicity of new chemicals. Throughout the late 1990s and 2000s the OTS continued to focus on gathering data on existing chemicals.
More recently, nonprofits, the EPA, members of the general public, and even industry leaders have called for TSCA’s reform. These 12 interviews with former OTS staff members, including those involved in the bill’s initial development, provide a unique perspective on this complex regulatory history.
Courtesy Still Picture Records Section, Special Media Archives Services Division, National Archives and Records Administration.
James V. Aidala
From 1975 to 1993 Aidala worked for the pesticides program in the Office of Pesticides and Toxic Substances. He was also the associate assistant administrator of the Office of Prevention, Pesticides and Toxic Substances from 1993 to 2000. He is now a research associate with the law firm Bergeson & Campbell, where he speaks and writes on TSCA reform.
Charles M. Auer
Auer spent 33 years in the OTS, starting as a staff chemist in 1976 and concluding as director from 2002 to 2009. Most of his career was focused on evaluating chemical toxicity. He is now an affiliate with the law firm Bergeson & Campbell, where he speaks and writes on TSCA reform.
Marilyn C. Bracken
Bracken joined the OTS in 1978, becoming first the deputy assistant administrator for program administration and later the associate assistant administrator of toxics integration. She was responsible for establishing the TSCA Inventory and facilitating international collaboration. She left the EPA with the change in administration in 1983. She now works for the Institute for Defense Analysis.
Don R. Clay
In 1981 Clay became the director of the OTS. He remained director through much of the Reagan administration, where he was influential in determining the scope of TSCA. He left the OTS in 1986, but continued to work for the EPA until 1993. From 1998 until retirement in 2010 he was director and then vice president of environmental and regulatory affairs at Koch Industries.
J. Clarence “Terry” Davies
In 1970 while a professor at Princeton University, Davies published The Politics of Pollution, calling for the need for a chemicals policy. That same year, he was invited to join the newly formed President’s Council on Environmental Quality. There he was responsible for codrafting what eventually became TSCA. He served as the EPA deputy administrator from 1989 to 1991 and is currently a senior fellow at Resources for the Future, where he has written extensively about TSCA reform.
Charles (Chuck) L. Elkins
As director of the OTS from 1986 to 1990, Elkins oversaw the OTS’s promulgation of the Section 6 ban on the use of asbestos until the courts overturned that regulation. After leaving the EPA, Elkins worked at the environmental consulting firm of Jellinek, Schwartz & Connolly for another four years before starting his own environmental consulting firm, Chuck Elkins & Associates.
E. Donald Elliott
Elliott was general counsel at the EPA from 1989 to 1991, during the Corrosion Proof Fittings v. EPA case. He is currently a practicing lawyer and is a professor of environmental law at Yale and Georgetown Universities.
Linda J. Fisher
Fisher was the assistant administrator of the Office of Prevention, Pesticides and Toxic Substances (formerly the Office of Pesticides and Toxic Substances) from 1989 to 1993, where she was influential in the office’s response to the Corrosion Proof Fittings case. She has been the vice president of safety, health, and environment at DuPont since 2004 and has testified about TSCA reform before Congress multiple times on behalf of DuPont.
Greenwood worked in the EPA Office of General Counsel from 1978 to 1990. He oversaw the aftermath of the Corrosion Proof Fittings case and the office’s transition to pollution prevention. He is currently a partner in the law firm Ropes & Gray LLC, where he has published about TSCA reform.
Steven D. Jellinek
After a 10-year career with the Internal Revenue Service, Jellinek was among the first employees of the President’s Council on Environmental Quality, and he became the first assistant administrator of the Office of Toxic Substances at the EPA. He served in that position until 1981, shaping the office’s administrative and technological infrastructure.
Victor J. Kimm
As deputy assistant administrator in the Office of Pesticides and Toxic Substances (OPTS), Kim oversaw chemical regulation, resulting in re-registration and the modernizing of outdated protocols. During his 10 years as deputy assistant administrator, OPTS was responsible for implementing the Toxic Substances Control Act (TSCA).
Charles F. Lettow
As a counsel for the President’s Council on Environmental Quality, Lettow collaborated with Terry Davies to compose the first draft of what eventually became TSCA. He then practiced law, with a focus on environmental issues, for 20 years. He currently serves as a judge for the U.S. Court of Federal Claims.
Warren R. Muir
Muir was the first deputy assistant of testing and evaluation in the Office of Toxic Substances at the EPA, where he was responsible for establishing the new chemicals program. When the OTS expanded to include the Pesticides Program, he became the first director of the OTS. He is currently the executive director of the Division of Earth and Life Sciences at the National Academy of Sciences.
Glenn E. Schweitzer
Schweitzer was asked to manage the newly created OTS in 1974. He had four tasks: to ensure that the TSCA passed quickly, deal with the “chemical of the month,” help the Office of Air and Water deal with toxic chemicals under the legislative authorities, and upgrade data being used throughout EPA.