By Myra L. Karstadt, Ph.D

On June 13, a team of which I was part received EPA’s highest award: The Administrator’s Gold Medal for Exceptional Service.  According to the citation, the award was given to us “For successful conclusion of the largest administrative penalty action in history which will significantly improve reporting of TSCA toxic chemical risk information.”

The DuPont case, which I worked on from mid-2003 (the beginning of the investigation that resulted in the litigation) until I left EPA at the end of May 2005, was based in greatest part on the company’s violation of reporting regulations under section 8(e) of the Toxic Substances Control Act (TSCA). TSCA covers the production and distribution of commercial and industrial chemicals, and its goal is “to ensure that chemicals sold and used in the United States do not pose an unreasonable risk to human health and the environment.” Section 8(e) requires U.S. chemical manufacturers, importers, processors and distributors to notify EPA within 30 days of “new, unpublished information on their chemicals that may lead to a conclusion of substantial risk to human health or to the environment.”  EPA determined that DuPont repeatedly failed to notify the agency about substantial risk of injury to human health or the environment that DuPont obtained about PFOA, a chemical involved in producing DuPont’s Teflon®, from as early as 1981 and as recently as 2004.

You’d think that a statutory section that resulted in “the largest administrative penalty action in history” would have a good deal of staff and resources devoted to it, and would be enforced with vigor with regard to violators other than DuPont.  Sounds logical, but if that’s what you’re thinking, you would be wrong.

As the Gold Medal citation suggests, you can get some very valuable information from TSCA 8(e). Members of the public can access TSCA 8(e) reports that EPA has received . Or that’s how it’s supposed to work, anyway. Here’s how it’s working in practice right now:

• As of June 29, 2007, the bibliographic data base (sort of like Medline or Toxline) that would let you identify TSCA 8(e) reports received by EPA has been essentially dead for several years.  Toxline entries for TSCA 8(e) are current through 2000 or 2001.  So you really can’t even find out whether EPA has received a TSCA 8(e) report about a chemical in which you’re interested, and that’s a shame.
• As of June 29, 2007, the Website for the TSCA 8(e) program’s documents has less information available to the public than it did two years ago.  There are no reports from 2007, and reports in PDF format from only four months in 2006 ending with July.  A note posted on the Website states that “The 2000-2004 submissions will be posted on this page in the near future.”  The “near future” has been coming since at least January 2007 and likely months before that- those 2000-2004 TSCA 8(e) reports were available in PDF form on the Website in mid-2005, but are very much missing now.  Ironically, the majority of the reports critical to the DuPont case are in the group of documents no longer on the Website.
• Resources? Staff?  How about just about nothing for TSCA 8(e) when it comes to both resources and staff?  That’s part of the explanation for reports that are public information no longer being available to the public on the Web.  And it’s part of the explanation for the lack of a database that would let you figure out whether EPA even has TSCA 8(e) reports you’d be interested in.
• The real problem with TSCA 8(e) is a complete lack of commitment to the program by the “senior management” in the Office of Pollution Prevention and Toxics (the EPA office that manages TSCA programs).  Instead, resources and staff have gone to voluntary programs of doubtful value, including the High Production Volume (HPV) Challenge , a cooperative venture of EPA, the chemical companies’ trade association (the American Chemistry Council), and a NGO (Environmental Defense).  

This is the first of a series of submissions to The Pump Handle about my experiences working on the TSCA 8(e) program and the DuPont case.  I hope readers will find the entries interesting, and comments and suggestions as to how to improve the situation of a worthy program would be appreciated.

Myra L. Karstadt, Ph.D is an adjunct assistant professor at Drexel University’s School of Public Health.