EPA Preps For Potential Legal Fight

EPA appears to be gearing up for a court fight over whether or how it can regulate chemicals that are already on the market. James Jones, EPA acting assistant administrator for chemical safety and pollution prevention, said late last week that the agency is preparing to use its regulatory authority to ban, restrict, or require labeling of chemicals under the Toxic Substances Control Act (TSCA).

EPA will take such action under TSCA if any assessment that the agency is conducting for a group of 83 chemicals or classes show that a substance poses an unreasonable risk to human health or the environment (C&EN, April 30, page 28).

“If they are not safe, we will take action,” Jones said at a June 7 meeting of the Environmental Council of the States, an organization of states’ highest ranking environmental regulators.

Jones implied that the agency is girding itself for a legal battle over regulations to control so-called existing substances—chemicals that are already on the market—as opposed to new compounds.

The agency has not attempted to invoke TSCA authority to control an existing substance since 1989, when it banned most uses of asbestos, a known human carcinogen. But in 1991, a federal appeals court struck down the ban. The court found that, despite tens of thousands of pages of documentation, EPA failed to show both that asbestos posed an unreasonable risk to human health and that a ban was the least burdensome regulatory alternative to provide protection.

“We have a difficult [legal] standard to meet with TSCA,” Jones acknowledged. But, he added, “we’ll find out if this is as hard to use as everybody thinks it is.”