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Testimony: 

Before the Subcommittee on Commerce, Trade, and Consumer Protection, 
Committee on Energy and Commerce, House of Representatives: 

United States Government Accountability Office: 
GAO: 

For Release on Delivery: 
Expected at 10:00 a.m. EST:
Thursday, February 26, 2009: 

Chemical Regulation: 

Options for Enhancing the Effectiveness of the Toxic Substances Control 
Act: 

Statement of John Stephenson, Director:
Natural Resources and the Environment: 

GAO-09-428T: 

GAO Highlights: 

Highlights of GAO-09-428T, a testimony before the Subcommittee on 
Commerce, Trade, and Consumer Protection, Committee on Energy and 
Commerce, House of Representatives. 

Why GAO Did This Study: 

Congress passed the Toxic Substances Control Act (TSCA) in 1976, 
authorizing the Environmental Protection Agency (EPA) to obtain 
information on the risks of industrial chemicals and to control those 
that EPA determines pose an unreasonable risk. However, EPA does not 
have sufficient chemical assessment information to determine whether it 
should establish controls to limit public exposure to many chemicals 
that may pose substantial health risks. In reports on TSCA, GAO has 
recommended statutory changes to, among other things, provide EPA with 
additional authorities to obtain health and safety information from the 
chemical industry and to shift more of the burden to chemical companies 
for demonstrating the safety of their chemicals. The most important 
recommendations aimed at providing EPA with the information needed to 
support its assessments of industrial chemicals have not been 
implemented—a key factor leading GAO in January 2009 to add 
transforming EPA’s process for assessing and controlling toxic 
chemicals to its list of high-risk areas warranting attention by 
Congress and the executive branch. 

This testimony, which is based on prior GAO work, addresses EPA’s 
implementation of TSCA and options for (1) obtaining information on the 
risks posed by chemicals to human health and the environment, (2) 
controlling these risks, and (3) publicly disclosing information 
provided by chemical companies under TSCA. 

What GAO Found: 

TSCA generally places the burden of obtaining data on existing 
chemicals on EPA, rather than on the companies that produce the 
chemicals. For example, the act requires EPA to demonstrate certain 
health or environmental risks before it can require companies to 
further test their chemicals. As a result, EPA does not routinely 
assess the risks of the roughly 80,000 industrial chemicals in use. 
Moreover, TSCA does not require chemical companies to test the 
approximately 700 new chemicals introduced into commerce annually for 
their toxicity, and companies generally do not voluntarily perform such 
testing. Further, the procedures EPA must follow in obtaining test data 
from companies can take years to complete. In contrast, the European 
Union’s chemical control legislation generally places the burden on 
companies to provide health effects data on the chemicals they produce. 
Giving EPA more authority to obtain data from the companies producing 
chemicals, as GAO has in the past recommended that Congress consider, 
remains a viable option for improving the effectiveness of TSCA. 

While TSCA authorizes EPA to issue regulations that may, among other 
things, ban existing toxic chemicals or place limits on their 
production or use, the statutory requirements EPA must meet present a 
legal threshold that has proven difficult for EPA and discourages the 
agency from using these authorities. For example, EPA must demonstrate 
“unreasonable risk,” which EPA believes requires it to conduct 
extensive cost-benefit analyses to ban or limit chemical production. 
Since 1976, EPA has issued regulations to control only five existing 
chemicals determined to present an unreasonable risk. Further, its 1989 
regulation phasing out most uses of asbestos was vacated by a federal 
appeals court in 1991 because it was not based on “substantial 
evidence.” In contrast, the European Union and a number of other 
countries have largely banned asbestos, a known human carcinogen that 
can cause lung cancer and other diseases. GAO has previously 
recommended that Congress amend TSCA to reduce the evidentiary burden 
EPA must meet to control toxic substances and continues to believe such 
change warrants consideration. 

EPA has a limited ability to provide the public with information on 
chemical production and risk because of TSCA’s prohibitions on the 
disclosure of confidential business information. About 95 percent of 
the notices companies have provided to EPA on new chemicals contain 
some information claimed as confidential. Evaluating the 
appropriateness of confidentiality claims is time- and resource-
intensive, and EPA does not challenge most claims. State environmental 
agencies and others have said that information claimed as confidential 
would help them in such activities as developing contingency plans to 
alert emergency response personnel to the presence of highly toxic 
substances at manufacturing facilities. The European Union’s chemical 
control legislation generally provides greater public access to the 
chemical information it receives, and GAO has previously recommended 
that Congress consider providing EPA additional authorities to make 
more chemical information publicly available. 

To view the full product, including the scope and methodology, click on 
[hyperlink, http://www.gao.gov/products/GAO-09-428T]. For more 
information, contact John B. Stephenson at (202) 512-3841 or 
stephensonj@gao.gov. 

[End of section] 

Mr. Chairman and Members of the Subcommittee: 

I am pleased to appear today before the Subcommittee on Commerce, 
Trade, and Consumer Protection, House Committee on Energy and Commerce, 
to discuss our work on the need to improve the Toxic Substances Control 
Act (TSCA). As you know, tens of thousands of chemicals are currently 
in commercial use in the United States and hundreds of new chemicals 
are introduced into commerce each year--some of which may be toxic and 
adversely affect human health or the environment. The Congress passed 
TSCA in 1976 to enable the Environmental Protection Agency (EPA) to 
obtain information on the risks of commercially used chemicals and to 
control those that EPA determines may pose unreasonable risks. However, 
TSCA generally places the burden of obtaining information about the 
roughly 80,000 chemicals already on the U.S. market on EPA, rather than 
on the companies that produce the chemicals. The act requires EPA to 
demonstrate certain health or environmental risks before it can require 
companies to further test their chemicals. As a result, EPA does not 
routinely assess the risks of the industrial chemicals that are already 
in use. Further, for the approximately 700 new chemicals introduced 
into commerce annually, chemical companies are required to provide EPA 
with certain information in "premanufacture notices," and EPA can ban 
or limit a chemical's use if it finds, among other things, that this 
information is insufficient to allow evaluation of the chemical's 
health and environmental effects. Although 85 percent of the notices 
lack any health or safety test data, EPA does not often use its 
authority to obtain more information. 

In previous reports on TSCA, we have recommended both statutory and 
regulatory changes to, among other things, strengthen EPA's authority 
to obtain additional information from the chemical industry, shift more 
of the burden to chemical companies for demonstrating the safety of 
their chemicals, and enhance the public's understanding of the risks of 
chemicals to which they may be exposed. In part because the most 
important recommendations aimed at providing EPA with the information 
needed to support its assessments of industrial chemicals have not been 
implemented, in January 2009, we added transforming EPA's processes for 
assessing and controlling toxic chemicals to our list of areas at "high-
risk" for waste, fraud, abuse and mismanagement or in need of broad-
based transformation.[Footnote 1] 

My testimony today is largely based on our prior work involving TSCA 
that identified the challenges associated with implementing the act and 
some of the legislative options available to address these challenges. 
Specifically, my statement addresses EPA's implementation of TSCA and 
options for (1) obtaining information on the risks posed by chemicals 
to human health and the environment, (2) controlling these risks, and 
(3) publicly disclosing information provided by chemical companies 
under TSCA. In addition, my testimony will also highlight the results 
of our 2007 report assessing the key differences between the approach 
to chemical regulation under TSCA and the chemical control policy the 
European Union adopted in 2006 under legislation known as Registration, 
Evaluation and Authorization of Chemicals (REACH). (See Related GAO 
Products following this statement.) 

In summary, EPA lacks adequate scientific information on the toxicity 
of many chemicals in the environment. TSCA generally places the burden 
of obtaining data on chemicals on EPA, rather than on the companies 
that produce the chemicals. This approach requires that EPA demonstrate 
certain health or environmental risks before it can require companies 
to further test their chemicals. As a result, EPA has only limited 
information on the health and environmental risks posed by these 
chemicals. In previous reports on TSCA, we have identified for 
Congressional consideration statutory changes to strengthen EPA's 
authority to obtain information from the chemical industry. In our 
view, these changes remain viable options for improving the 
effectiveness of TSCA and thereby enhancing EPA's ability to protect 
public health and the environment. 

While TSCA authorizes EPA to issue regulations that may, among other 
things, ban existing toxic chemicals or place limits on their 
production or use, the statutory requirements EPA must meet to do so 
present a legal threshold that has proven difficult for EPA and 
discouraged agency action. For example, EPA has long concluded that 
asbestos is a known human carcinogen that can cause lung cancer and 
other diseases. Although EPA spent 10 years developing a rule to phase 
out the use of nearly all products containing asbestos under its TSCA 
authority, a federal appeals court largely vacated the rule because it 
was not based on "substantial evidence." In contrast to the United 
States, the European Union and a number of other countries have 
essentially banned asbestos and asbestos-containing products. Since 
EPA's asbestos rule was rejected in 1991, the agency has not completed 
any actions to ban or limit toxic chemicals under section 6. The 
options for enhancing the effectiveness of TSCA that we have identified 
in prior reports include amendments to reduce the evidentiary burden 
that EPA must meet to enable EPA to better protect the public health 
and the environment. 

EPA's ability to provide the public with information on chemical 
production and risk has been hindered by strict confidential business 
information provisions of TSCA, which generally prohibits the 
disclosure of confidential business information. State environmental 
agencies and others have expressed interest in obtaining information 
claimed as confidential business information for use in various 
activities, such as developing contingency plans to alert emergency 
response personnel to the presence of highly toxic substances at 
manufacturing facilities. In previous reports, we have identified 
options for statutory changes to improve EPA's ability to make more 
chemical information publicly available. 

Background: 

The Toxic Substances Control Act was enacted in 1976 to provide EPA 
with the authority, upon making certain determinations, to collect 
information about the hazards posed by chemical substances and to take 
action to control unreasonable risks by either preventing dangerous 
chemicals from making their way into use or placing restrictions on 
those already in commerce. TSCA authorizes EPA to review chemicals 
already in commerce (existing chemicals) and chemicals yet to enter 
commerce (new chemicals). EPA lists chemicals in commerce in the TSCA 
inventory. Of the over 83,000 chemicals currently in the TSCA 
inventory, about 62,000 were already in commerce when EPA began 
reviewing chemicals in 1979. Since then, over 21,000 new chemicals were 
added to the inventory and are now in use as existing chemicals. To 
assess risks, EPA examines a chemical's toxicity or potential adverse 
effects and the amount of human and environmental exposures. TSCA 
generally requires the industry to notify EPA at least 90 days before 
producing or importing a new chemical. These notices contain 
information, such as the chemical's molecular structure and intended 
uses that EPA uses to evaluate the chemical's potential risks. TSCA 
also authorizes EPA to promulgate rules to require manufacturers to 
perform tests on chemicals in certain circumstances or provide other 
data, such as production volumes, on existing chemicals. In addition, 
TSCA requires chemical companies to report to EPA any data that 
reasonably support a conclusion that a chemical presents a substantial 
risk. If EPA finds that a chemical's risks are unreasonable, it can 
prohibit or limit its production, processing, distribution, use, and 
disposal or take other action, such as requiring warning labels on the 
substance. While TSCA authorizes EPA to release chemical information 
obtained by the agency under the act, TSCA provides that certain 
information, such as data disclosing chemical processes, can be claimed 
as confidential business information by chemical manufacturers and 
processors. EPA generally must protect such information against public 
disclosure unless such disclosure is necessary to protect against an 
unreasonable risk of injury to health or the environment. 

Like the United States, the European Union has laws and regulations 
governing the manufacturing and use of chemicals. However, the EU has 
recently revised its chemical control policy through legislation known 
as Registration, Evaluation and Authorization of Chemicals (REACH). 
REACH went into effect in June 2007, but full implementation of all the 
provisions of REACH will be phased in over an 11-year period. Under 
REACH, authority exists to establish restrictions for any chemical that 
poses unacceptable risks and to require authorization for the use of 
chemicals identified as being of very high concern. These restrictions 
could include banning uses in certain products, banning uses by 
consumers, or even completely banning the chemical. Authorization will 
be granted if a manufacturer can demonstrate that the risks from a use 
of the chemical can be adequately controlled or that the socioeconomic 
benefits outweigh the risks and that there are no suitable 
alternatives. In addition, a key aspect of REACH is that it places the 
burden on manufacturers, importers, and downstream users to ensure that 
they manufacture, place on the market, or use such substances that do 
not adversely affect human health or the environment. Its provisions 
are underpinned by the precautionary principle. In general, the 
precautionary principle means that where there are threats of serious 
or irreversible damage, lack of full scientific certainty shall not be 
used as a reason for postponing cost-effective measures to reduce risks 
to human health and the environment. 

EPA Lacks Adequate Information on Potential Health and Environmental 
Risks of Toxic Chemicals: 

While TSCA authorizes EPA to review existing chemicals, it generally 
provides no specific requirement, time frame, or methodology for doing 
so. Significantly, chemical companies are not required to develop and 
submit toxicity information to EPA on existing chemicals unless the 
agency finds that a chemical may present an unreasonable risk of injury 
to human health or the environment or is or will be produced in 
substantial quantities and that either (a) there is or may be 
significant or substantial human exposure to the chemical or (b) the 
chemical enters the environment in substantial quantities. EPA must 
also determine there are insufficient data to reasonably determine the 
effects on health or the environment and that testing is necessary to 
develop such data before it can require a company to test its chemicals 
for harmful effects. This structure places the burden on EPA to 
demonstrate a need for data on a chemical's toxicity rather than on a 
company to demonstrate that a chemical is safe. As a result, EPA does 
not routinely assess the risks of the roughly 80,000 industrial 
chemicals in use. 

EPA has begun to rely on voluntary programs for data, such as the High 
Production Volume Challenge program, where companies voluntarily agree 
to provide EPA certain data on high-production volume chemicals. 
However, these programs may not provide EPA with complete data in a 
timely manner. For example, there are currently over 200 high- 
production-volume chemicals for which chemical companies have not 
voluntarily agreed to provide the minimal test data that EPA believes 
are needed to initially assess their risks. EPA officials told us that 
in cases where chemical companies do not voluntarily provide test data 
and health and safety studies in a complete and timely manner, 
requiring the testing of existing chemicals of concern--those chemicals 
for which some suspicion of harm exists--is the only practical way to 
ensure that the agency obtains the needed information. Furthermore, 
many additional chemicals are likely to become high production 
chemicals because the specific chemicals used in commerce are 
constantly changing, as are their production volumes. 

However, EPA officials told us that it is time-consuming, costly, and 
inefficient for the agency to use TSCA's two-step process of (1) 
issuing rules under TSCA (which can take months or years to develop) to 
obtain exposure data or available test data that the chemical industry 
does not voluntarily provide to EPA and then (2) issuing additional 
rules requiring companies to perform specific tests necessary to ensure 
the safety of the chemicals tested. Officials also said that EPA's 
authority under TSCA to issue rules requiring chemical companies to 
conduct tests on existing chemicals has been difficult to use because 
the agency must first make certain findings before it can require 
testing. Specifically, TSCA requires EPA to find that current data is 
insufficient; testing is necessary; and that either (1) the chemical 
may present an unreasonable risk or (2) that the chemical is or will be 
produced in substantial quantities and that there is or may be 
substantial human or environmental exposure to the chemical. 

Once EPA has made the required findings, the agency can issue a 
proposed rule for public comment, consider the comments it receives, 
and promulgate a final rule ordering chemical testing. EPA officials 
told us that finalizing rules can take from 2 to 10 years and require 
the expenditure of substantial resources. Given the time and resources 
required, the agency has issued rules requiring testing for only about 
200 chemicals. Because EPA has used authority to issue rules to require 
testing so sparingly, it has not continued to maintain information on 
the cost of implementing these rules. However, in our October 1994 
report on TSCA, we noted that EPA officials told us that issuing such a 
rule can cost hundreds of thousands of dollars. Given the difficulties 
involved in requiring testing, EPA officials do not believe that TSCA 
provides an effective means for testing a large number of existing 
chemicals. They believe that EPA could review substantially more 
chemicals in less time if they had the authority to require chemical 
companies to conduct testing and provide test data on chemicals once 
they reach a substantial production volume, assuming EPA had first 
determined that these data cannot be obtained without testing. We have 
long held a similar view based on our reviews involving TSCA. For 
example, in our in June 2005 report,[Footnote 2] we recommended that 
the Congress consider giving EPA the authority to require chemical 
manufacturers and processors to develop test data based on substantial 
production volume and the necessity for testing. We continue to believe 
that providing EPA with more authority to obtain test data from 
companies would enhance the effectiveness of TSCA. 

In contrast with TSCA's provisions for obtaining information on 
chemicals, we found that REACH, the legislation through which the 
European Union has recently revised its chemical control policy, 
requires chemical companies to develop more information than TSCA on 
the effects of chemicals on human health and the environment. REACH 
generally requires that chemical companies provide to, and in some 
cases develop for, government regulators information on chemicals' 
effects on human health and the environment, while TSCA generally does 
not. For example, under REACH, chemical companies provide information 
on chemicals' properties and health and environmental effects for 
chemicals produced over specified volumes. REACH also provides 
regulators the general authority to require chemical companies to 
provide additional test data and other information when necessary to 
evaluate a chemical's risk to human health and the environment. In 
contrast, TSCA places the burden on EPA to demonstrate that data on 
health and environmental effects are needed. 

Regarding new chemicals, TSCA generally requires chemical companies to 
notify EPA of their intent to manufacture or import new chemicals and 
to provide any available test data. Yet EPA estimates that most 
premanufacture notices do not include test data of any type, and only 
about 15 percent include health or safety test data. Chemical companies 
do not have an incentive to conduct these tests because they may take 
over a year to complete, and some tests may cost hundreds of thousands 
of dollars. Because EPA generally does not have sufficient data on a 
chemical's properties and effects when reviewing a new chemical, EPA 
uses models to compare new chemicals with chemicals with similar 
molecular structures for which test data on health and environmental 
effects are available. 

EPA bases its exposure estimates for new chemicals on information 
contained in premanufacture notices. However, the anticipated 
production volume, uses, exposure levels, and release estimates 
outlined in these notices generally do not have to be amended once 
manufacturing begins. That is, once EPA completes its review and 
production begins, chemical companies are not required under TSCA to 
limit the production of a chemical or its uses to those specified in 
the premanufacture notice or to submit another premanufacture notice if 
changes occur. However, the potential risk of injury to human health or 
the environment may increase when chemical companies increase 
production levels or expand the uses of a chemical. TSCA addresses 
expanded uses of chemicals by authorizing EPA to promulgate a rule 
specifying that a particular use of a chemical would be a significant 
new use. However, EPA has infrequently issued such rules, which require 
manufacturers, importers, and processors of the chemical for the new 
use to notify EPA at least 90 days before beginning manufacturing or 
processing the chemical for that use. 

An option that could make TSCA more effective would be to revise the 
act to require companies to test their chemicals and submit the results 
to EPA with their premanufacture notices. Currently, such a step is 
required only if EPA makes the necessary findings and promulgates a 
testing rule. A major drawback to testing is its cost to chemical 
companies, possibly resulting in a reduced willingness to perform 
chemical research and innovation. To ameliorate such costs, or to delay 
them until the new chemicals are produced in large enough quantity to 
offset the cost of testing, requirements for testing could be based on 
production volume. For example, in Canada and the European Union, 
testing requirements for low-volume chemicals are less extensive and 
complex than for those for high-volume chemicals. Congress could give 
EPA, in addition to its current authorities under section 4 of TSCA, 
the authority to require chemical substance manufacturers and 
processors to develop test data based on, for example, substantial 
production volume and the necessity for testing. 

Another option would be to provide EPA with greater authority to 
require testing targeted to those areas in which EPA's analysis models 
do not adequately predict toxicity. For example, EPA could be 
authorized to require such testing if it finds that it cannot be 
confident of the results of its analysis (e.g., when it does not have 
sufficient toxicity data on chemicals with molecular structures similar 
to those of the new chemicals submitted by chemical companies.) Under 
such an option, EPA could establish a minimal set of tests for new 
chemicals to be submitted at the time a chemical company submits a 
premanufacture notice for the chemical for EPA's review. Additional and 
more complex and costly testing could be required as the new chemical's 
potential risks increase, based on, for example, production or 
environmental release levels. 

According to some chemical companies, the cost of initial testing could 
be reduced by amending TSCA to require EPA to review new chemicals 
before they are marketed, rather than before they are manufactured. In 
this regard, according to EPA, about half of the premanufacture notices 
the agency receives from chemical companies are for new chemicals that, 
for various reasons, never enter the marketplace. Thus, requiring 
companies to conduct tests and submit the resulting test data only for 
chemicals that are actually marketed would be substantially less 
expensive than requiring them to test all new chemicals submitted for 
EPA's review. 

Likewise, TSCA's chemical review provisions could be strengthened by 
requiring the systematic review of existing chemicals. In requiring 
that EPA review premanufacture notices within 90 days, TSCA established 
a firm requirement for reviewing new chemicals, but the act contains no 
similar requirement for existing chemicals unless EPA determines by 
rule that they are being put to a significant new use. TSCA could be 
amended to establish a time frame for the review of existing chemicals, 
putting existing chemicals on a more equal footing with new chemicals. 
However, because of the large number of existing chemicals, EPA would 
need the flexibility to identify which chemicals should be given 
priority. TSCA could be amended to require individual chemical 
companies or the industry as a whole to compile and submit chemical 
data, such as that included in EPA's High Production Volume (HPV) 
Challenge Program, for example, as a condition of manufacture or import 
above some specified volume. 

TSCA's Regulatory Framework Impedes EPA's Efforts to Control Toxic 
Chemicals: 

While TSCA authorizes EPA to issue regulations that may, among other 
things, ban existing toxic chemicals or place limits on their 
production or use, the statutory requirements EPA must meet to do so 
present a legal threshold that has proven to be difficult for EPA. 
Specifically, in order to regulate an existing chemical under section 6 
of TSCA, EPA must find that there is a reasonable basis to conclude 
that the chemical presents or will present an unreasonable risk of 
injury to health or the environment. EPA officials believe that 
demonstrating an unreasonable risk is a more stringent requirement than 
demonstrating, for example, a significant risk, and that a finding of 
unreasonable risk requires an extensive cost-benefit analysis. In 
addition, before regulating a chemical under section 6, the EPA 
Administrator must consider and publish a statement regarding: 

* the effects of the chemical on human health and the magnitude of 
human exposure to the chemical; 

* the effects of the chemical on the environment and the magnitude of 
the environment's exposure to the chemical; 

* the benefits of the chemical for various uses and the availability of 
substitutes for those uses; and: 

* the reasonably ascertainable economic consequences of the rule, after 
consideration of the effect on the national economy, small business, 
technological innovation, the environment, and public health. 

Moreover, while TSCA offers EPA a range of control options when 
regulating existing chemicals--ban or restrict a chemical's production, 
processing, distribution in commerce, or disposal or use, or require 
warning labels on the chemicals--EPA is required to choose the least 
burdensome requirement that will be adequately protective. For example, 
if EPA finds that it can adequately manage the unreasonable risk of a 
chemical by requiring chemical companies to place warning labels on the 
chemical, EPA may not ban or otherwise restrict the use of that 
chemical. EPA must also develop substantial evidence in the rulemaking 
record in order to withstand judicial review. Under TSCA, a court 
reviewing a TSCA rule "shall hold [it] unlawful and set [it] aside…if 
the court finds that the rule is not supported by substantial evidence 
in the rulemaking record." As several courts have noted, the 
substantial evidence standard is more rigorous than the arbitrary and 
capricious standard normally applied to rulemaking under the 
Administrative Procedure Act. Further, according to EPA officials, the 
economic costs of regulating a chemical are usually more easily 
documented than the risks of the chemical or the benefits associated 
with controlling those risks, and it is difficult to show substantial 
evidence that EPA is promulgating the least burdensome requirement. 

EPA has had difficulty demonstrating that harmful chemicals pose an 
unreasonable risk and consequently should be banned or have limits 
placed on their production or use. In fact, since Congress passed TSCA 
nearly 33 years ago, EPA has issued regulations under the act to ban or 
limit or restrict the production or use of only five existing chemicals 
or chemical classes.[Footnote 3] Significantly, in 1991, EPA's 1989 
regulation broadly banning asbestos was largely vacated by a federal 
appeals court decision that cited EPA's failure to meet statutory 
requirements.[Footnote 4] In contrast to the United States, the 
European Union, as well as a number of other countries, has banned all, 
or almost all, asbestos and asbestos-containing products. 

Asbestos, which refers to several minerals that typically separate into 
very tiny fibers, is a known human carcinogen that can cause lung 
cancer and other diseases if inhaled. Asbestos has been used widely in 
products such as fireproofing, thermal insulation, and friction 
products, including brake linings. EPA invested 10 years in exploring 
the need for the asbestos ban and in developing the regulation. Based 
on its review of over 100 studies of the health risks of asbestos as 
well as public comments on the proposed rule, EPA determined that 
asbestos is a potential carcinogen at all levels of exposure--that is, 
that it had no known safe exposure level. EPA's 1989 rule under TSCA 
section 6 prohibited the future manufacture, importation, processing, 
and distribution of asbestos in almost all products. In response, some 
manufacturers of asbestos products filed suit against EPA arguing, in 
part, that the rule was not promulgated on the basis of substantial 
evidence regarding unreasonable risk. In October 1991, the U.S. Court 
of Appeals for the Fifth Circuit agreed with the chemical companies, 
concluding that EPA had failed to muster substantial evidence to 
justify its asbestos ban and returning parts of the rule to EPA for 
reconsideration. 

Specifically, the court concluded that EPA did not present sufficient 
evidence to justify the ban on asbestos because it did not consider all 
necessary evidence and failed to show that the control action it chose 
was the least burdensome regulation required to adequately protect 
human health or the environment. EPA had not calculated the risk levels 
for intermediate levels of regulation because it believed there was no 
asbestos exposure level for which the risk of injury or death was zero. 
As articulated by the court, the proper course of action for EPA, after 
an initial showing of product danger, would have been to consider each 
regulatory option listed in TSCA, beginning with the least burdensome, 
and the costs and benefits of each option. The court further criticized 
EPA's ban of products for which no substitutes were currently available 
stating that, in such cases, EPA "bears a tough burden" to demonstrate, 
as TSCA requires, that a ban is the least burdensome alternative. In 
addition, the court stated that in evaluating what risks are 
unreasonable, EPA must consider the costs of any proposed actions; 
moreover, the court noted that TSCA's requirement that EPA impose the 
least burdensome regulation reinforces the view that EPA must balance 
the costs of its regulations against their benefits. After completing 
the 1989 asbestos rule, EPA has completed only one regulation to ban or 
limit the production or use of an existing chemical (for hexavalent 
chromium in 1990). Further, EPA has not completed any actions to ban or 
limit toxic chemicals under section 6 since the court rejected its 
asbestos rule in 1991. 

With EPA's limited actions to control toxic chemicals under TSCA, state 
and federal actions have established controls for some toxic chemicals. 
For example, a California statute enacted in 2007 prohibits the 
manufacture, sale, or distribution of certain toys and child care 
articles after January 1, 2009, if the products contain concentrations 
of phthalates exceeding 0.1 percent.[Footnote 5] In 2008, Congress took 
similar action. California has also enacted limits on formaldehyde in 
pressed wood. In response to a petition asking EPA to use section 6 of 
TSCA to adopt the California formaldehyde regulation, EPA recently 
issued an advance notice of proposed rulemaking suggesting several 
regulatory options the agency could pursue under its TSCA section 6 
authority to limit exposure to formaldehyde. However, because of the 
legal hurdles the agency would face in regulating formaldehyde under 
TSCA, some stakeholders have recommended that EPA pursue legislation to 
control formaldehyde. 

In our previous reports on TSCA, we identified a number of options that 
could strengthen EPA's ability to regulate harmful chemicals under TSCA 
and enhance EPA's ability to protect public health and the environment. 
Potential changes to TSCA include reducing the evidentiary burden that 
EPA must meet to take regulatory action under the act by amending the 
(1) unreasonable risk standard that EPA must meet to regulate existing 
chemicals under section 6 of TSCA, (2) standard for judicial review 
that currently requires a court to hold a TSCA rule unlawful and set it 
aside unless it is supported by substantial evidence in the rulemaking 
record, and (3) requirement that EPA choose the least burdensome 
regulatory requirement. We have previously recommended that the 
Congress amend TSCA to reduce the evidentiary burden that EPA must 
meet.[Footnote 6] 

Alternatively, the European Union's recently enacted chemical control 
legislation, REACH, represents a regulatory model that differs from the 
TSCA framework in key ways. For example, REACH is based on the 
principle that chemical companies have the responsibility to 
demonstrate that the chemicals they place in the market, distribute, or 
use do not adversely affect human health or the environment, while TSCA 
generally requires EPA to demonstrate that chemicals pose risks to 
human health or the environment prior to controlling risks related to 
their production, distribution, or use. In addition, under REACH, 
chemical companies must obtain authorization to continue to use a 
chemical of very high concern, such as a chemical for which there is 
scientific evidence of probable serious health or environmental 
effects. Generally, to obtain such authorization, the chemical company 
needs to demonstrate that it can adequately control risks posed by the 
chemical, such as by requiring that workers wear safety equipment when 
working with the chemical or otherwise ensuring that the chemical is 
produced under safe conditions. If the chemical company cannot provide 
evidence of adequate control, authorization would be granted only if 
the socioeconomic advantages of a specific use of the chemical are 
greater than its potential risks, and if there are no suitable 
alternatives or technologies. This process substantially differs from 
TSCA's section 6 requirements as discussed above. 

EPA's Ability to Share Information Under TSCA's Confidential Business 
Information Provisions Are Limited: 

EPA's ability to make publicly available the information that it 
collects under TSCA is limited. Chemical companies may claim some of 
the information they provide to EPA under TSCA as confidential business 
information. EPA is required under the act to protect trade secrets and 
privileged or confidential commercial or financial information against 
unauthorized disclosures, and this information generally cannot be 
shared with others, including state health and environmental officials 
and foreign governments. However, some state officials believe this 
information would be useful for informing and managing their 
environmental risk programs. Furthermore, while EPA believes that some 
claims of confidential business information may be unwarranted, 
challenging the claims is resource-intensive. 

EPA has not performed any recent studies of the appropriateness of 
confidentiality claims, but a 1992 EPA study indicated that problems 
with inappropriate claims were extensive. This study examined the 
extent to which companies made confidential business information 
claims, the validity of the claims, and the impact of inappropriate 
claims on the usefulness of TSCA data to the public. While EPA may 
suspect that some chemical companies' confidentiality claims are 
unwarranted, the agency does not have data on the number of 
inappropriate claims. According to EPA, about 95 percent of 
premanufacture notices contain some information that chemical companies 
claim as confidential. EPA officials also told us that the agency does 
not have the resources that would be needed to investigate and, as 
appropriate, challenge claims to determine the number that are 
inappropriate. Consequently, EPA focuses on investigating primarily 
those claims that it believes may be both inappropriate and among the 
most potentially important--that is, claims relating to health and 
safety studies performed by the chemical companies involving chemicals 
currently used in commerce. The EPA official responsible for initiating 
challenges to confidentiality claims told us that EPA challenges about 
14 such claims each year and that the chemical companies withdraw 
nearly all of the claims challenged. 

Officials who have various responsibilities for protecting public 
health and the environment from the dangers posed by chemicals believe 
that having access to confidential TSCA information would allow them to 
examine information on chemical properties and processes that they 
currently do not possess and could enable them to better control the 
risks of potentially harmful chemicals. Likewise, the general public 
may also find information provided under TSCA useful. Individual 
citizens or community groups may have a specific interest in 
information on the risks of chemicals that are produced or used in 
nearby facilities. For example, neighborhood organizations can use such 
information to engage in dialogue with chemical companies about 
reducing chemical risks, preventing accidents, and limiting chemical 
exposures. 

While both TSCA and REACH have provisions to protect information 
claimed by chemical companies as confidential, REACH requires greater 
public disclosure of certain information, such as basic chemical 
properties. Furthermore, REACH places greater restrictions on the kinds 
of information chemical companies may claim as confidential. For 
example, REACH includes a provision for public access to basic chemical 
information, including brief profiles of hazardous properties and 
authorized uses. The European Union's approach to public's access to 
information combines a variety of ways that the interests of the 
public's right to know is balanced with the need to keep certain 
information confidential. As such, nonconfidential information will be 
published on the chemical agency's Web site. REACH also includes a 
provision under which confidential information can generally be shared 
with government authorities of other countries or international 
organizations under an agreement between the parties provided that 
certain conditions are met. 

In previous reports, we recommended that the Congress consider 
providing EPA additional authorities under TSCA to improve its ability 
to make more chemical information publicly available. For example, in 
our June 2005 report,[Footnote 7] we recommended that the Congress 
consider amending TSCA to authorize EPA to share with the states and 
foreign governments the confidential business information that chemical 
companies provide to EPA, subject to regulations to be established by 
EPA in consultation with the chemical industry and other interested 
parties that would set forth the procedures to be followed by all 
recipients of the information in order to protect the information from 
unauthorized disclosures. In our September 1994 report,[Footnote 8] we 
recommended that the Congress consider limiting the length of time for 
which information may be claimed as confidential without 
resubstantiation of the need for confidentiality. 

Mr. Chairman, this concludes my prepared statement. I would be happy to 
respond to any questions that you or Members of the Subcommittee may 
have. 

Contacts and Acknowledgments: 

For further information about this testimony, please contact John 
Stephenson at (202) 512-3841 or stephensonj@gao.gov. Key contributors 
to this testimony were David Bennett, Antoinette Capaccio, Nancy 
Crothers, Christine Fishkin, Richard Johnson, and Ed Kratzer. 

[End of section] 

Related GAO Products: 

High-Risk Series: An Update. [hyperlink, 
http://www.gao.gov/products/GAO-09-271]. Washington, D.C.: January 22, 
2009. 

Chemical Regulation: Comparison of U.S. and Recently Enacted European 
Union Approaches to Protect against the Risks of Toxic Chemicals. 
[hyperlink, http://www.gao.gov/products/GAO-07-825]. Washington, D.C.: 
August 17 2007. 

Chemical Regulation: Actions are Needed to Improve the Effectiveness of 
EPA's Chemical Review Program. [hyperlink, 
http://www.gao.gov/products/GAO-06-1032T]. Washington, D.C.: August 2, 
2006. 

Chemical Regulation: Options Exist to Improve EPA's Ability to Assess 
Health Risks and Manage Its Chemical Review Program. [hyperlink, 
http://www.gao.gov/products/GAO-05-458]. Washington, D.C.: June 13, 
2005. 

Toxic Substances Control Act: Legislative Changes Could Make the Act 
More Effective. [hyperlink, 
http://www.gao.gov/products/GAO/RCED-94-103]. Washington, D.C.: 
September 26, 1994. 

[End of section] 

Footnotes: 

[1] High Risk Series: An Update. [hyperlink, 
http://www.gao.gov/products/GAO-09-271]. Washington, D.C.: Jan. 22, 
2009. 

[2] GAO, Chemical Regulation: Options Exist to Improve EPA's Ability to 
Assess Health Risks and Manage Its Chemical Review Program. [hyperlink, 
http://www.gao.gov/products/GAO-05-458]. Washington, D.C.: June 13, 
2005 

[3] EPA has placed controls on four new chemicals under section 5(f). 

[4] The court vacated most of the rule but continued the rule's ban on 
asbestos products no longer in commerce. 

[5] This statute, as well as restrictions in place by the European 
Union, covers several phthalates, including dibutyl phthalate. In 2000, 
the Department of Health and Human Services' National Toxicology 
Program concluded that dibutyl phthalate may adversely affect human 
reproduction or development if exposures are sufficiently high. 

[6] GAO, Toxic Substances Control Act: Legislative Changes Could Make 
the Act More Effective. [hyperlink, 
http://www.gao.gov/products/GAO/RCED-94-103]. Washington, D.C.: 
September 26, 1994 

[7] GAO, Chemical Regulation: Options Exist to Improve EPA's Ability to 
Assess Health Risks and Manage Its Chemical Review Program. [hyperlink, 
http://www.gao.gov/products/GAO-05-458]. Washington, D.C.: June 13, 
2005. 

[8] GAO, Toxic Substances Control Act: Legislative Changes Could Make 
the Act More Effective. [hyperlink, 
http://www.gao.gov/products/GAO/RCED-94-103]. Washington, D.C.: 
September 26, 1994. 

[End of section] 

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