For many professions who deal with government regulations, there is an understanding that the regulations are an attempt to codify the intent of the underlying Act. We get so focused on day-to-day compliance, the underlying regulation may be forgotten or poorly understood. Just how often does someone download or search out the Act as passed by Congress? So, lets look at the Toxic Substance Control Act (TSCA). Here are the Policy and Intent portions of the regulation:
It is the policy of the United States that—
(1) adequate data should be developed with respect to the effect of chemical substances and mixtures on health and the environment and that the development of such data should be the responsibility of those who manufacture and those who process such chemical substances and mixtures;
(2) adequate authority should exist to regulate chemical substances and mixtures which present an unreasonable risk of injury to health or the environment, and to take action with respect to chemical substances and mixtures which are imminent hazards; and
(3) authority over chemical substances and mixtures should be exercised in such a manner as not to impede unduly or create unnecessary economic barriers to technological innovation while fulfilling the primary purpose of this chapter to assure that such innovation and commerce in such chemical substances and mixtures do not present an unreasonable risk of injury to health or the environment.
(c) Intent of Congress It is the intent of Congress that the Administrator shall carry out this chapter in a reasonable and prudent manner, and that the Administrator shall consider the environmental, economic, and social impact of any action the Administrator takes or proposes to take under this chapter.
This Act has been around since 1976. Think about that 1976 - it was one of the first environmental Acts that was to be implemented by the newly formed Environmental Protection Agency (EPA). So, since this was initially implemented early in the development of the EPA - you would anticipate that the overall implementation would be and was very different than how regulations are developed today. The concerns of the time were lead, radon, asbestos, and formaldehyde - because those were the chemicals that had attracted the attention of the public.
Today there is more understanding of the nature of the chemicals that we use everyday. There are more controls. There is more emphasis on safety. There is a culture of mitigating risks associated with working with, transporting and using materials. These changes are a result of this regulation as well as other regulations such as the Occupational Health and Safety Administration (OSHA). Additionally, there is greater public pressure due to some high profile accidents and impacts.
Yet, there are aspects of the Act that tend to be forgotten - the words "reasonable and prudent" are included. The Administrator "shall consider the environmental, economic, and social impact of any action." These words imply that the regulations should not be considered in a vacuum. The approach should consider weighing the impacts on various sectors not just one.
Today - the public and legislators are seeing REACH the EU's version of TSCA and there is a push to "revamp" or reauthorize or modify TSCA. The American Chemical Council has issued a statement on the modernization of TSCA. There is a bill that has been introduced into the Senate. Yes, the regulations need to be modernized as they were developed over a generation ago. However, the intent and policy statements are still valid. Do we really need modernization of the underlying Act?
Any time we make a change there numerous unintended consequences. Pick any regulation - and you can see far reaching impacts that were never considered or even thought about. Take the example of the need to modify gasoline to impact air quality. The gasoline marketed in the 60's and early 70's has been modified to remove lead as an octane booster, removal of sulfur to allow for catalytic conversion to reduce carbon monoxide and to reduce sulfur oxides, and the addition of oxygenates to reduce carbon monoxide.
Focus for a second on the oxygenate story, the early oxygenate of choice was MTBE. To solve one problem; another was created. MTBE ended up in groundwater. Ultimately, MTBE pulled as the oxygenate. The groundwater issue was not clearly understood when the change was implemented.
Similar stories can be found throughout our environmental regulatory history. We have to use a balanced approach when making changes. We need to use science as well as a social and economic understanding. Consequences need to be considered and evaluated. Time scales need to be examined.
Ultimately, there is a resource and priority issue that needs to be solved.