TSCA in the 1990s: Adapting the Toxic Substances Control Act to Nonchemical Manufacturers

Braden R. Allenby

Braden R. Allenby is a senior attorney (environment) at AT&T, with responsibility for Toxic Substances Control Act (TSCA), Clean Air Act, CFC, and global climate change issues. He is also current Chairman of the American Electronics Association TSCA Task Force. Mr. Allenby holds a B.A. from Yale University, a J.D. and M.A. (Economics) from the University of Virginia, an M.S. (Environmental Sciences) from Rutgers University, and is currently a Ph.D. candidate (Environmental Sciences) at Rutgers. The views expressed in this Article are the author's alone, and not necessarily those of AT&T or AEA.

[20 ELR 10132]

Congress enacted the Toxic Substances Control Act (TSCA)¹ in 1976 to control risks from chemicals in commerce. TSCA requires the Environmental Protection Agency (EPA) to review most new chemicals while they are still being developed, before they are manufactured. TSCA also gives EPA power to regulate chemicals already in commerce if they create an "unreasonable risk" to health or to the environment.² Intended to solve the environmental problems inherent in the synthetic chemical revolution following World War II, TSCA's ambitious authorities have never been effectively applied to regulate manufacturers that are not part of the chemical industry.

Distinctions between chemical companies and other manufacturers have become blurred as U.S. industry reorganizes to compete globally. It remains true that nonchemical manufacturers produce products, such as computers, switches, cars, office machines, or airplanes, as opposed to traditional bulk chemicals. But increasingly, nonchemical manufacturers use applied chemistry to quickly develop new products or to cut costs in making existing products. For example, new conductive inks are critical components of many modern electronic devices, and advanced polymeric coating formulations play an important role in enhancing the durability of a wide variety of consumer goods, from cars to soft drink cans. These nonchemical manufacturers are potentially subject to regulations developed for traditional chemical companies, but implementation of TSCA has not kept pace.

Although EPA has expanded TSCA's scope by broadly defining critical terms, EPA has not considered the regulatory implications for nonchemical manufacturers, especially the smaller firms. For example, over 80 percent of the members of the leading electronics trade association, the American Electronics Association, are small businesses with less than 200 employees. Many of them may be subject to TSCA under EPA's broad definitions, but they are ill-equipped to comply with TSCA's ambiguous and frequently informal requirements. TSCA's unnecessarily complex regulatory structure and reliance on informal guidance documents have the practical effect of greatly complicating, if not precluding, compliance by companies lacking large, sophisticated environmental compliance staffs. An efficient regulatory regime would simplify compliance requirements for these types of small businesses without sacrificing control of chemical substances.

Historically, EPA's development of TSCA regulations and guidance documents involves input from chemical companies and their trade groups, to the practical exclusion of other affected industries. Partly, this is the nonchemical manufacturers' fault: usually they have neither commented on proposed TSCA regulations nor provided informal input to EPA's TSCA staff. For its part, EPA's staff crafts policy based on its understanding of chemical industry processes, excluding the unique processes involved in nonchemical industries.

EPA's informal TSCA regulatory process fails when applied to nonchemical manufacturing companies. A major problem for any nonchemical manufacturing company — especially a small one — is that TSCA regulations are incomplete and ambiguous. More than in any other environmental statute, TSCA's regulatory structure is built on informal guidance, such as fact sheets and question-and-answer documents that are seldom published in the Federal Register. Sometimes important TSCA guidance is provided even more informally by EPA letter to individual companies or trade groups. Most chemical companies, through their trade groups, can usually track down such informal guidance. But these documents are frequently difficult, if not impossible, for nonchemical companies to obtain. For smaller companies, the transaction costs created by this disorganized, informal regulatory structure are prohibitive. Although reliance on informal documents is understandable — perhaps even efficient — in a small regulated community, such procedures cannot provide appropriate notice to a large, multi-faceted regulated community, such as the small nonchemical manufacturers.

Suggested Reforms

Both the nonchemical manufacturers and EPA must adapt to the changes in U.S. industry to make TSCA effective. Nonchemical manufacturers must recognize that TSCA applies to many of their activities. Individual companies and their trade groups need to develop TSCA expertise, expand compliance and training activities, and work with EPA staff on technical issues.

For its part, EPA should recognize that many of its existing policies, definitions, and rules are ambiguous or make no sense when applied to nonchemical manufacturers. Moreover, regulations that may be justified when applied to chemical manufacturing activities may be completely disproportionate when applied to nonchemical manufacturers' processes. In addition, EPA's policymaking and rulemaking processes must also be formalized. This process should include rulemaking to adopt clear definitions of such critical jurisdictional terms as "process" and "processor." By simplifying and rationalizing current TSCA regulations, this activity would improve compliance levels significantly, especially for small companies.

Formalization should also include establishing a quasi-permanent [20 ELR 10133] TSCA task force to identify and solve problems in existing regulations. The task force should also function as an industry-EPA interface, helping to develop TSCA regulations that ease compliance without unduly affecting environmental protection or U.S. competitiveness. Members should include representatives from nonchemical industries, EPA, and interested organizations, such as environmental groups.

As part of this overall process, EPA and the nonchemical manufacturers should prepare training materials and conduct seminars nationwide on TSCA's application to nonchemical manufacturers. This will educate nonchemical manufacturers about their TSCA responsibilities and provide useful feedback for further regulatory reform.

Summary

If TSCA is to perform its intended functions in the new international industrial environment, elements of the current regulatory regime must be modified. EPA and the nonchemical manufacturers both must cooperate in this effort, which should be initiated immediately.

1. 15 U.S.C. §§ 2601-2671, ELR STAT. TSCA 001-056.

2. TSCA § 6(a), 15 U.S.C. § 2605(a), ELR STAT. TSCA 014. For an analysis of TSCA generally, see ENVIRONMENTAL LAW INSTITUTE, LAW OF ENVIRONMENTAL PROTECTION §§ 15.01-15.08 (1987 with annual updates).