165 



USEPA to obtain data about toxic chemical production and use in Illinois and first 

 encountered what I've come to call the "CBI zone." Needless to say, we only got 

 grossly aggregated data and specific chemical and facility identities were not avail- 

 able. We were surprised and dismayed by the extent to which the CBI provisions 

 of TSCA operated to deny us access to important information that we saw as rel- 

 evant for protection of public health and the environment in Illinois. How could we 

 hope to ultimately ensure chemical safety to citizens in Illinois if we were not even 

 able to find out what chemicals were in production and use? From that time for- 

 ward, CBI became a symbol for us of poor public policy that needed to be changed. 

 In 1984 through 1986, I participated in a policy dialogue process about TSCA that 

 was sponsored by the Conservation Foundation and included representatives of the 

 chemical industry, states and environmental groups. Several consensus positions 

 were developed including a proposal for authorizing state access to CBI under 

 TSCA. In October, 1988, I was invited to testify before a subcommittee of the House 

 Committee on Government Operations. In my testimony, I described the "paradox 

 of exclusion" wherein states are caught in a vicious cycle of being charged with reg- 

 ulation of toxic chemicals that are released into the environment but are expressly 

 excluded from participation in the regulatory process that sanctions commercial use 

 of chemicals. I advocated more state participation in TSCA and specifically called 

 for access to confidential data as a first priority. In 1990, the lEPA became more 

 involved with TSCA when Region V, USEPA, awarded us a grant to perform PCB 

 inspections and prepare potential enforcement cases. In 1991, I was selected as one 

 of the charter members of the Forum on State and Tribal Toxics Action (FOSTTA) 

 and served as the first chairman of this group for two years. Over the last year, 

 I served as the past chair and participated in several of the operational projects that 

 are setup within the FOSTTA. 



INTRODUCTION 



In preparing this testimony, I reflected upon what had caused my keen and long 

 standing interest in TSCA. After all, states have generally been on the periphery 

 of TSCA implementation for nearly 20 years. The simple truth that emerged was 

 we in Illinois, and many other states as well, have been on a parallel pathway in 

 pursuit of better management of toxic chemicals in our jurisdictions. What started 

 as broad mandates to subdue environmental pollution in the 1970s eventually 

 evolved into heightened focus upon the root causes of such insults. This perspective 

 has become known as "pollution prevention," and TSCA is the one national environ- 

 mental law that starts at the beginning when chemical substances are proposed for 

 introduction into commerce. I might add that what gets used in commerce also re- 

 sults in environmental releases that could and sometimes do affect public health 

 and the environment. 



The second thing that occurred to me was that many things have changed since 

 the TSCA came on the scene in 1976. For instance, the world was a witness in 1984 

 to the fact that toxic chemicals can be very deadly on a large scale if something 

 major goes wrong. I am speaking, of course, of the awareness expanding and tragic 

 incident in Bhopal, India at the Union Carbide facility. Following this incident, the 

 "right-to-know" became a legitimate part of national public policy and was codified 

 in the Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986. 

 The passage of EPCRA set a new direction for what should be known about toxic 

 chemicals. Protection for trade secrets is recognized but not presumed to be applica- 

 ble. A company must provide a written explanation of the reasons for a trade secret 

 claim based on specific statutory factors. Irrespective of such a claim, a state may 

 still obtain "any information" that has been submitted to the USEPA. In contrast, 

 much chemical information generated because of TSCA is inaccessible by entities 

 (e.g., states) with a legitimate need to know. This situation is not tolerable given 

 the ever expanding public and political support for comprehensive reduction of 

 toxics risks. Simply put, the old TSCA is out of sync with the times and stands in 

 the way of continued environmental progress. 



So, let us take a brief look at why states need access to this toxics information 

 and at some of the potential uses for such data. 



