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How to Handle Difficult Chemicals: The Unused Tool in EPA's Chemical Toolbox--Section 7 of the Toxic Substances Control Act

January 1994

Citation: ELR 10015

Author: Jamie C. Eisenfeld and Michael J. Walker

Editors' Summary: After TSCA was enacted in 1976, some commentators described it as the most powerful of all the environmental laws. Congress intended it to provide for the comprehensive and direct control of commercial chemicals' potential health or environmental effects in a true cradle-to-grave tracking system. Indeed, it was the single law addressing toxic substances that could cover all areas of environmental regulation, supplementing sections of existing toxic substances laws. In the 17 years since its enactment, however, TSCA has not fulfilled these goals or expectations. Despite the insightful and potentially far-reaching authority that TSCA places at EPA's disposal, the Agency has not used that authority to move aggressively to curtail the use, distribution, and disposal of toxic threats. One section of TSCA that EPA has significantly underused is TSCA 7, the imminent hazard provision.

This Article addresses the inadequate implementation of 7. The author briefly reviews TSCA's overall statutory enforcement scheme, noting impediments to the implementation and application of 7. Next, in analyzing considerations critical to decisions to file 7 actions, the author provides an overview of the few decisions and administrative actions involving 7 and suggests how EPA can perhaps better use 7. The author also suggests how EPA can better decide when a 7 action is more appropriate and suitable than other TSCA enforcement activity. The author concludes that EPA needs to identify and eliminate impediments to its 7 authority by developing clear guidelines for 7 actions, and redelegate decisionmaking authority within EPA over imminent hazards.

Michael J. Walker is the Enforcement Counsel for TSCA and FIFRA in the Office of Enforcement, U.S. Environmental Protection Agency, Washington, D.C. The opinions expressed are not necessarily those of EPA. Ms. Eisenfeld researched this Article while working as a law clerk in the Toxics Litigation Division at EPA. Ms. Eisenfeld is a graduate of Arizona State University Law School and she is a member of the Pennsylvania Bar.