60 



EPA any data that reasonably support a conclusion that a chemical presents a sub- 

 stantial risk to health or the environment. 



TSCA does not apply to pesticides, tobacco, nuclear material, firearms and ammu- 

 nition, food, food additives, drugs, and cosmetics. These products are regulated 

 under other laws. 



CHEMICAL REGULATION UNDER TSCA 



As of May 1994, EPA has issued regulations under TSCA to control only nine 

 chemicals — five existing chemicals and four new ones. Moreover, the regulations 

 were generally limited in scope. Only those for two existing chemicals — poly- 

 chlorinated biphenyls (PCBs) and asbestos — provided for widespread bans on chemi- 

 cal manufacture or uses. The regulations to phase out the manufacture of PCBs 

 were specifically required in TSCA, and the regvilation to phase out almost all prod- 

 ucts containing asbestos was overturned by a 1991 court decision. The regulations 

 for the three other existing chemicals banned a certain use for two of them and pro- 

 hibited the third from being disposed of in one manufacturer's waste. EPA has also 

 issued regulations for four new chemicals used in metalworking. These regulations 

 prohibited the mixing of the chemicals with certain other substances because, in 

 combination, they form a cancer-causing substance. 



A major reason why EPA has taken very few regvilatory actions under TSCA is 

 the act's high legal standards. TSCA authorizes EPA to control chemical risks that 

 are unreasonable. However, while TSCA requires that EPA take the least burden- 

 some regulatory action to protect adequately against unreasonable risk, it does not 

 define what constitutes an unreasonable risk. In the absence of statutory guidance 

 on this, EPA assumes a very high threshold for when it can take action to control 

 a chemical. In effect, EPA believes it must have substantial evidence that the bene- 

 fits to society of implementing any controls outweigh the costs. This standard is es- 

 pecially difficult for major controls or restrictions on widely used chemicals because 

 the costs can be extensive and the full range of benefits may be difficult to docu- 

 ment. EPA's regulation to phase out asbestos products illustrates this difficulty. Al- 

 though EPA had considerable scientific evidence of serious health risks and spent 

 several years developing the regulation, the court decided that the agency did not 

 adequately demonstrate that it had chosen the least burdensome alternatives for 

 controlling exposures to asbestos. 



Another major reason why EPA seldom takes regulatory actions under TSCA is 

 that the act expresses a preference for TSCA to be used only when other laws are 

 not available. Various other health and environmental laws allow EPA or other 

 agencies, such as the Occupational Safety and Health Administration, to control en- 

 vironmental releases or exposures to toxic chemicals. EPA officials believe that the 

 purpose of TSCA is to fill the gaps in other laws. That is, TSCA should be used 

 to control the production, distribution, use, and disposal of chemicals if other laws 

 cannot be used to reduce the risks. Essentially all the major sources of human 

 health and environmental exposures are potentially covered by the Clean Air, Clean 

 Water, and Resource Conservation and Recovery acts and other laws, such as the 

 Occupational Safety and Health and Consumer Product Safety acts. Thus, EPA or 

 other agencies could issue regulations under one or more of these other laws to re- 

 duce the releases or exposures contributing to essentially all the chemical risks 

 identified by EPA. The major exception is new chemicals. Other environmental leg- 

 islation and the Occupational Safety and Health Act do not cover chemicals before 

 they enter commerce. 



The chemical control law of Canada differs from TSCA in that it establishes a 

 simpler standard for regulatory action, and its relationship to other health and envi- 

 ronmental laws is more clearly defined. For example, the Canadian Environmental 

 Protection Act of 1988, which is the major law for controlling toxic chemicals, au- 

 thorizes the government to control chemicals that are toxic, which it basically de- 

 fines as chemicals entering the environment in a quantity or concentration, or under 

 a condition, having a harmful effect on the environment or human health. The costs 

 and benefits of control actions are not factors in deciding whether chemical risks 

 are such that action should be taken. Rather, they are factors in deciding which al- 

 ternative action to take. According to Canadian officials familiar with TSCA, it is 



