The Toxic Substances Control Act (TSCA),¹ which has been in effect less than three years, represents perhaps the deepest penetration by the federal government into the activities of the private sector for the purpose of regulating environmental hazards. Recently, the Third Circuit Court of Appeals became the first federal court to interpret a key data-gathering provision of TSCA, and, in so doing, it left the regulators pleased and the chemical manufacturers unhappy. The decision highlights the tension in the law between industry's need to protect its product development activities in order to gain a competitive advantage and the government's need to obtain information about that development early enough to assure that the public health will not be threatened.

In Dow Chemical Co. v. Environmental Protection Agency,² the Third Circuit upheld the Agency's assertion of authority under §8(d) of TSCA to obtain health and safety studies of chemical substances, even during the research and development phase of the product cycle, by adhering strictly to the statutory language and dismissing potentially conflicting indications in the legislative history. The decision gives an important boost to the view that the federal government has broad powers under the Act to pierce the veil that has shrouded corporate activities when a serious impact on the nation's environment is threatened.