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REGULATION OF AN INDUSTRIAL SECTOR:

A CASE STUDY OF THE TOXIC SUBSTANCES CONTROL ACT

By

Linda Sue Wennerberg

A DISSERTATION

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

Department of Resource Development

1984

ABSTRACT

REGULATION OF AN INDUSTRIAL SECTOR: A CASE STUDY
OF THE TOXIC SUBSTANCES CONTROL ACT

BY

Linda Sue Wennerberg

The threat of toxic substances in the environment emerged as a
significant controversy in the early 1970’s. A lack of appropriate
statutory controls prompted Congress to pass a new format of
environmental law. Congress established the Toxic Substances Control
Act (hereafter TSCA) as a prospective program similar to the Food, Drug
and Cosmetic Act. TSCA blended this format of a long-range planning
framework as well as the problem-solving structure of traditional
environmental law. In theory, this framework mitigated immediate toxic
problems plus this format prevented the future release of new toxics.

A case study of the initial mlemaking, under TSCA, focused on the
Inventory section, the foundation of all the subsequent regulation under
the Act. The Inventory established a list of existing chemicals in
commerce. This review of the chemical industry was to be completed 315
days after the signing of TSCA. The Environmental Protection Agency
(hereafter E.P.A.) took nearly three years to complete the Inventory
process. Confusion, procedural delays, and the inherent difficulty of
fusing scientific principles with legal processes deferred E.P.A.’s
rulemaking.

In this study it was found that limited data hindered E.P.A.'s

progress during the complicated rulemaking and created a dependency

Linda Sue Wennerberg

on the more informed chemical industry. Information, within E.P.A., was
ineffectively communicated among staff members due to a centralized
structure and poor record keeping. The staff lacked the experience and.
interdisciplinary focus to conceptualize the long-range planning of a
prospective statute.

The Inventory and TSCA itself, illustrate the problem of
operationalizing practical regulations for complex problems within-
institutional constraints. Future research might consider these
institutional and informational constraints as they impact on

prospective statutes such as TSCA.

ACKNOWLEDGEMENTS

This research was supported by a grant from the National Oceanic
and Atmospheric Administration, grant #NABOAA-D—OO72,Project #R/TS/O and
by funds provided by the Michigan State University Experiment Station.

I would like to take this opportunity to express my appreciation
for the advice, time and constructive criticism given me by the members
of my guidance committee, Dr. Daniel A. Bronstein, Dr. Martin Benjamin,
Dr. Warren J. Samuels, Dr. Lawrence Libby and Dr. Milton H.
Steinmueller. Their high standards and professionalism encouraged me to
undertake and complete this research. A special thanks is owed to Dr.
Daniel A. Bronstein, my major professor. His support nurtured and
challenged my growth and progress.

I would like to thank the professional staff of the Department of
Resource Development. Ms. Cindy Erickson typed the first and final
draft. She was assisted by Ms. Patsy Johnston and Ms. Barbara Visser.
To these three individuals, I extend a grateful thank-you and praise for
your professionalism.

Many friends and family must remain unnamed solely because of space
limitations. My parents receive my thanks for their help and patience.
Special thanks go to several of my colleagues (fellow graduate students)
for their intellectual interactions. Valuable assistance and friendship
were given by Michael R. Thomas, Kyle M. Kittleson, Scott G. Witter,
James T. Parrish, Dan Engelberg and Richard J. Sjolander. I thank them
and wish them their just deserts (a job or whatever) which matches their
special skills. Personal friends of many years also deserve

acknowledgment. I would like to thank Jennifer Woods and D. Darren

ii

Meahl for their unflagging support and refreshing senses of humor. They
and many of my colleagues kept me sane in the dark moments.

A special note of thanks and appreciation goes to Michael N.
Beaulac. His encouragement and love smoothed out the rough path of
graduate school. For this and all that we have shared, I express my

gratitude and affection.

TABLE OF CONTENTS

LIST OF CHARTS

Chapter

I.

II.

III.

IV.

INTRODUCTION . . . . : . . I . . . . . . . . . . .

History of the Toxicity Problem . . . . . . . . .
Nature of the Problem, Methodology and Organization
Objectives and Focus Of This Study . . . . . . . . . . . .
References . . . . . . . . . . . . . . . . . . . . . .

A CASE STUDY OF TSCA . . . . . . . . . . . . . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . .
Legislative History . . . . . . . . . . . . . . . . . .
The Administrative Process . . . . . .

Administrative Issues
The Technical Issues

Legal-Scientific Issues . . . . . . . . .
Legal-Economic Definitions . . . . . . . . . . . . . .
Legal-Administrative Problems . . . . . . . .
General Conclusions . . . . . . . . . . . . . . .
References . . . . . . . . . . . . . .

THE ADMINISTRATIVE LAW PROCESS . . . . . . . . . . .

Introduction . . . . . . . . . . . . . .
The Definition of Administrative Law . . . . . . . . . . .
The Evolution of Administrative Law . . . . . . . . . . .
Controls Imposed on the Administrative Process . . .
Rulemaking Under TSCA . . . . . . . . . . .

References

0 O O O O O O O O O O O D O O O O O O O O O O O

INTEREST GROUPS IN THE ADMINISTRATIVE PROCESS . . . . . . .

Introduction . . . . . . . . . . . . . . . . .
Institutional Constraints . . . . . . . . ... . . . . .
The Importance of Interest Groups . . . . . . . . . .

in the Administrative Process . . . . . . . . . . . . .
The Effect of Interest Groups on TSCA . . . . . . . . .
References . . . . . . . . . . . . . . .

A CONSIDERATION OF THE PHILOSOPHICAL FRAMEWORK . . . . .

Introduction . . . . . . . . . . . . . . . .

Utilitarianism in Theory . . . . . . . . . . .

The Gap Between Utilitarian in Principle and in Practice

Alternative Considerations of Future Generations . . . . .
Possible Future Research . . . . . . . . . . . . . . . . .

References . . . . . . . . .

iv

Page

13
15

18

18
19
23
25
33
33
42
.49
63
67

77

77
77
80
86
94
102

106

106
108
113
115
119
122

122

122
123
126
134
137
140

Chapter Page
VI. SUMMARY, CONCLUSIONS, LIMITATIONS AND RECOMMENDATIONS . . . 144

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . 146
Limitations . . . . . . . . . . . . . . . . . . . . . . . . 148
Recommendations . . . . . . . . . . . . . . . . . . . . . . 149
References . . . . . . . . . . . . . . . . . . . . . . . . . 152

BIBLIOGRAPIIY o o o o o o o o o o o s o -o o o o o o o o o o o o o s 153

LIST OF CHARTS

Figure ' Page
1 0 Chart I O O O O O O O 0 O O O O O O O O O 0 O O O O O O O 42

2. Chart II . . . . . . . . . . . . . . . . . . . . . . . . . 48

vi

CHAPTER I

INTRODUCTION
History of the Toxicity Problem
Toxic substances in the environment emerged as one of the most
controversial environmental issues of the 1970's. Public concern about
toxics was the result of growing awareness about environmental

quality.1

It came to be recognized that human actions, through a
massive technological system, can have deleterious effects on the
bioshpere. Growing knowledge of the interconnections among flora, fauna
and the physical elements of the biosphere indicated that human health
could be affected.2 Pollution was revealed as a threat to health and a
waste of resources.

Traditionally the environment had been used as a huge sink for all
manner of wastes and residuals, but the realization of potential
poisoning by these wastes prompted scientific concern.3 Anxiety was
expressed over previously accepted practices of development, release and
disposal of various pollutants, especially toxic substances.4 Chemicals
in the environment are not inert, and reactions often have been poorly
understood, particularly the effects on the dynamic biosphere.

Such evidence as fish kills or vegetative die-offs resulting from
chemical exposure began to appear in the literature.5 Environment
assays showed pervasive levels of chemicals. Data were initially
inconclusive but indicated that many chemical concentrations resulted

from human intervention and not natural processes.6 Vital items, such

as drinking water and food, were found to be chemically contmninated.7

Controversy ensued as to the source and effect of human-introduced
chemicals.

Scientific evidence did not dispel the confusion and ignorance.
Monitoring equipment with saphisticated capabilities for testing the
environment was developed. Increasingly sensitive data were produced
and minute concentrations of chemicals were found throughout the
natural system. Interpretations of the expanded data set lagged behind
technological advances. The question of human health and its
relationship to environmental factors was in its infancy.8

Beyond the question of the present effect of toxics in the
environment was the disquieting intuition that future generations could
also be affected by toxic exposure. One could link to toxics exposure
birth defects and changes in the genetic make-up of exposed people.
Scientific evidence was bandied about, but no clear consensus emerged.
.The effect of chronic exposure to low levels of toxics in the
environment was especially in contention among experts. Long latency
periods might be required before measurable changes were detected in the
individual.9 Attempts to apply animal or bacterial tests (generally at
very high dosages) to low levels of human exposure only yielded more

disagreements. 10

Most scientific predictions were based on limited data
approximating the dynamic environment. The only point about which there
was agreement was that toxics existed throughout the environment.

An expanding data base gave credence to the concern that unexpected
8lrllel'gestic reactions occured in the environment. Once loose in the
biosphere, toxics created diverse conditions that encouraged further
cMinimal reactions. These could produce compounds and residuals even

“1°“ toxic than the original.11 Chemical reactions also stimulate the

3
exchange and migration of a toxic through the physical system. Although

a chemical may be inert, its toxics composition and effects may persist
once in the environment. This potential has short- and long-term health
implications. Questions were raised about the relationship between a
persistent toxic and such diseases as cancer.

Mutagenic substances were found with disturbing regularity among

12 It has been theorized that

the myriad of environmental contaminants.
the mutation of healthy cells into those that grow unchecked is the
beginning of cancer in an individual. One recent theory posits a
two-step process: an initiator (perhaps a toxic chemical) damages the
DNA and a promotion agent (again, possibly, a toxic chemical) transforms
the localized damage into a cancerous tmnor.13 Cancer afflicts one out
of every four Americans sometime in his/her lifetime, and about one out

14 Recent studies suggest

15 The

of every five of these die of the disease.

that 70-90 percent of all cancers are environmentally induced.
environment is broadly defined as the "physical, chemical, nutritional,
biological and psychological" factors affecting the individual.16 Toxic
hazards are among the external factors that. can induce genetic damage
and cancer.

Even more disquieting than cancer is the likelihood of the
long-term health effects related to genetic damage. Findings have

17 The

linked birth defects to fetal exposure from external agents.
Placenta, once considered an effective barrier to harmful inputs, has
been shown to allow certain chemicals to pass freely from the mother's

1304? into the fetus.18 Changes in parental germ plasm could be passed

on to succeeding generations. Release of a chemical now, even in

ignorance, can seriously affect a future individual's health or
viability. ‘

Evidence was sought about the interaction between people and their
environment in order to assess the present and future risks from toxic
exposure, but few definitive data materialized. Sound statistical
predictions on the magnitude of risk are still impossible. Intuitively,
scientists have the fact that toxics have an intergenerational effect
but estimating the gravity of the situation has proved elusive. Even
so, the possibility of debilitating or lethal results cannot be

ignored.19

Potential threats from released toxics alarmed the public.
Scientists offered few concrete results, dubious estimates of
probability, and little reassurance. Media coverage expanded as the
monitoring equipment found unsuspected levels and forms of chemical
contamination. The public’s curiosity changed to fear. Chemicals
seemed to be an invisible threat to life, and cries for protection began
to be heard. Technical experts had established that toxics were present
in the environment, and it was clear that health effects could be
expected. The public felt that toxic emissions had to be controlled and
monitored.20 It was assumed that economic constraints and the weak
structure of incentives would not induce the chemical industry to
control toxic releases voluntarily.21 The federal government seemed the
most likely agent for instituting a comprehensive plan to control toxic
problems. Environmental protection pg; §_e_ originated at the federal
level with the passage of the National Environmental Policy Act (NEPA)

in 1970.22

5
Within the federal government, the Environmental Protection Agency
(hereafter E.P.A. or the Agency) was the logical choice. E.P.A. had
been created by President Richard Nixon’s Executive Order to undertake

23 Toxics were

federal responsibilities for environmental affairs.
clearly in E.P.A.’s domain. As an administering agency, E.P.A. had the
power to regulate behavior to promote environmental quality under
various acts. A review of existing federal legislation found several
laws within E.P.A.’s purview that expressly addressed toxics. The Clean
Air Act (CAA) was amended to monitor the release of toxics into the

24

air. Similar jurisdiction in the Clean Water Act (FWPCA) covered

25

toxic emissions into water resources. Amendments to the Insecticide,

Fungicide and Rodenticide Act (FEPCA, the subsequent amendments to
FIFRA) strengthened E.P.A.’s authority over the use of pesticides.26
The specific language of each Act and its regulations limited E.P.A.’s
power to monitor and control toxics as a general problem. Coverage by
these laws was disjointed and would not generate the comprehensive data
base E.P.A. required. Without a straightforward mandate from Congress
and the power to assemble relevant data, E.P.A’s staff expressed doubts
over effective toxic control.

Congressional concern about toxics culminated in the passage in
1976 of the Toxic Substances Control Act (hereafter TSCA), the product
of five years of debate and compromise regarding the regulation of the

27 TSCA gave E.P.A. broad powers to collect,

chemical industry.
disseminate and use appropriate chemical data. The Act established more
than a clearinghouse for information, E.P.A. staff members were to

formulate policy for control of toxic emissions“) based on the more
‘9.

comprehensive data base. TSCA was the stop-gap measure to fill voids in

6

existing legislation. If a given situation was expressly covered in
another statute, E.P.A. would acknowledge the supremacy of the statute
over TSCA.28
TSCA expanded the previous responsiblities of the agency in two
areas. First, E.P.A. was to regulate the entire chemical industry.
Although other agencies such as the Interstate Commerce Commission,
Civil Aeronautics Board, and Federal Reserve Board had instituted
industry-wide controls, E.P.A. had never undertaken such a massive task.

The scale of TSCA overwhelemed the Agency staff. Second, TSCA was the

first attempt at a prospective environmental statue.29 Previous

 

enviromental laws had been reactive. They were designed to attack a
problem once an environmental hazard was discovered, with the focus on
the detection and containment of released pollutants.

TSCA combined the old and the new approaches. It incorporated the
accepted, reactive method of toxics control in its ban on PCBs.30
E.P.A. was generally mandated 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

"31 Reaction to an "imminent

mixtures which are imminent hazards.
hazard" was in keeping with the traditional powers in environmental
law.

TSCA's prospective nature was patterned on the Food and Drug
Administration’s (hereafter F.D.A.) power to review a drug's safety and

32 TSCA was the first of the "second

33

efficacy prior to marketing.

generation" environmental laws, designed to anticipate hazards. The

effects on human health and environmental quality had to be researched

34

before a new chemical could be manufactured and sold. Efficacy, while

7
a viable issue in human drug use, was not included in TSCA. The Act
represented a fundamental shift in legal scope for E.P.A. A prospective
law was an outgrowth of earlier reactions to environmental problems.
Understanding and control of pollution problems had become more
sophisticated. The enhanced data base permitted a more comprehensive
plan for controlling environmental degradation. Clean-up efforts of

Love Canal in New York,35 36

and along the James River, in Virginia, had
emphasized the massive resources required to purge the environment of a
released chemical. Contemporary technology could not restore the
environment to a pristine state. Containment of a toxic before it was
emitted could save both money and protect environmental quality. TSCA's
prospective controls were a logical step toward lessening the
possibility of toxic release through ignorance or irresponsibility.

TSCA expressly outlined the importance of data and the
responsibility of the chemical industry. It stated "adequate data
should be developed with respect to the effect of chemical substances
and their mixtures on health and the environment and. . .the development
of such data should be the responsibility of those who manufacture and
those who process such chemical substances and mixtures."37

E.P.A. was given the extensive task of drafting intelligible
regulations for TSCA. The slow, hesitant implementation of the basic
Inventory section illustrated TSCA’s uniqueness. E.P.A. was to regulate
an industry which possessed the bulk of the available data. The Agency
was to integrate the fragmented bits of information from industry and
other sources.

Within accepted legal and economic constraints, the lack of data

and of legal precedents hampered the Agency. The more basic problem for

8

TSCA was more than a change in routine; it was a fundamental shift in

the process of environmental regulation and protection.

Nature of the Problem, Methodology and Organization

Environmental Law evolved into a distinct field relatively
recently. Its evolution progressed through specific case law and the
broad acts passed by Congress. Few legislators grasped the technical
and scientific intricacies required for effective regulation of human
activity in the environment. As in other areas of the law, a
responsible agency was empowered to "flesh out" the environmental
statute with specific, systematic regulations. Congress prescribed the
general environmental goals for the protection of public health, safety,
welfare, and morals. Detailed policy for meeting this goal followed,
the result of an agency formulating regulations in the process of
Administrative Law.

An agency’s actions to establish regulations combine legal,
economic, and social concepts within the scope of the empowering act.
Regulations order mch of the detail of governmental control over an
individual’s life. Administrative Law, with its regulations, has been
and will continue to be a major factor affecting the social structure.
The study of this process provides insights into the power and direction
of regulatory agencies.

Environmental Law offers the opportunity to examine the legal
system in a multidisciplinary fashion. Crucial economic, political, and
scientific issues are addressed in complex regulations. TSCA, passed in
1976,13 a logical choice for an in-depth study of rulemaking and

regulation. The Act emerged as the first attempt by E.P.A. to regulate

the output of the entire chemical industry. Since that output averaged
12 percent of the total G.N.P. of the United States, the Act affected a
sizeable segment of the American economy.38 The task of regulating a
major sector of the economy was a new responsibility for an agency
established to monitor environmental hazards. TSCA was a new format for
environmental protection in its control over an entire industrial sector
and in its prospective approach.

Concentration of the study on TSCA's first major set of regulations
illustrates the process of rulemaking by a federal agency. This first

39 The Inventory

rulemaking under TSCA was the Inventory section, §8b.
developed under TSCA is an uneasy blend of legal principles and
scientific considerations. Those regulations formed the basis for
future E.P.A. action under TSCA.

In sum, the study of an enviromental statute as it becomes
translated into regulation provides insight into the orientation and
future direction of the agency in question. In this case, examination
of the Inventory regulations clarifies E.P.A.’s procedures and
illustrates the diverse disciplines involved. It also illuminates the
more general process of Administrative Law. Serious questions emerge
about the Agency’s ability to function during the administrative process
to regulate environmental issues adequately, especially toxics. The
process of rulemaking places burdens on an agency to utilize the
available information and to follow specific procedures. This study
attempts to comprehend the actual regulation process under TSCA and its
implications for the more general field of environmental law.

A case study has been chosen as the most appropriate method to

trace the development of regulation under TSCA. The Inventory section

10

was selected because it formed the basis for all subsequent regulation
and because the Act required its rapid implementation. Furthermore, it
exemplifies the interaction of scientific, legal, and economic
principles in regulation. Informal rulemaking for the Inventory was
expected to follow the general procedures of Administrative Law.
However, a simple legal analysis of the final regulations would provide
little insight into Agency procedures. A review of E.P.A.’s performance
requires an in—depth analysis of all relevant data, communications, and
staff research into the Inventory regulations.

This analysis of the Agency’s procedures and information also
provides insight into how such complex decisions are made. A series of
interviews was conducted over a three-year period with E.P.A. staff to
better determine internal decision making and procedures of the Agency.
Contacts were established in the nine regional offices and headquarters
in Washington, D.C. The regulations resulted from a lengthy process of
compromise between the staff and external interests. The public record
of hearings, correspondence, and telephone conversations illustrates the
relationship between the regulatory agency and the diverse groups
influencing the rulemaking. Examination of Agency action memoranda and
files helped establish the connection between internal staff work and
the released regulations. Pivotal staff interviews were invaluable,
often augmenting undated or undocumented materials in the file. Many
gaps in the record could only be filled by personal recollections of
staff members.

Key definitions for the Inventory and succeeding sections of the
Act often had little factual base in the Agency files. Poor

recordkeeping by the staff necessitated further interviews with the

11

special interest groups submitting information to E.P.A. These included
environmental/public interest organizations, the chemical industry,
trade organizations, labor unions, and state and federal agencies.
Personal access to their files, comments, and data illustrated the
conflicting information given E.P.A. Strategic submissions by such
groups further strengthened the public record. Many items submitted
were incorporated into draft and final regulations with no Agency
comment.

The specifics of the Inventory have broad implications for the
entire process of Administrative Law and its application to
environmental law. In this study, research into the legal history and
theory provides further insights into the limits of regulation. A
review of the relevant legal, economic and philosophical literature
connects the various disciplines involved in complex rulemaking, such as
TSCA’s Inventory. In summary, a thorough study of specific regulations
under TSCA was compared to the traditional theory of Administrative
Law.

The study will proceed as follows. Chapter II presents the control
case study of the rulemaking under the Inventory. A legislative history
prefaces the analysis to contrast Congressional intent with subsequent
Agency action. E.P.A. procedures are described and analyzed in the
context of appropriate files, interviews, and regulations. Problems
within the process are delineated to illustrate TSCA’s difference from
traditional environmental statutes. In addition to the influence of 58b
on succeeding regulations under TSCA, more generalized conclusions about
the process of Administrative Law in relation to environmental

protection are presented.

12

The institution of Agency rulemaking is reviewed in Chapters III
and IV. The evolution of Agency action,'especially in informal
rulemaking, is reviewed from a legal perspective in Chapter III.
Procedural requirements are critiqued in light of court opinions and
legal theory to address the adequacy of Administrative Law in terms of
environmental regulations. Chapter IV discusses external interest
groups within the administrative process. References to Chapter II will
highlight the sensitivity of an agency to political pressure and
selected information. Environmental questions, especially toxics, have
severe information gaps, forcing the regulator to depend on those being
regulated for data. Chapter III and IV, based on the factual account
given in Chapter II, describe the general administrative process.

Chapter V discusses the basic philosophical concepts supporting the
traditional structure of governmental action, of which, agency
rulemaking is one example. The case study, presented in Chapter II,
illustrates the difficulty of operationalizing the philosophical
framework. This structure of values underlies the resistance to the
alternative format of TSCA and the new generation of environmental laws.
Alternative concepts are presented to indicate possible avenues for
future research on complex environmental decision making.

A critique of the process’s influence on TSCA and related
environmental statutes is found in Chapter VI. This summarizes the
events discussed in Chapter II and the relationship to the insitutional
structure examined in Chapter III, and IV and V. Conclusions and

suggestions for future research complete this study.

13

Objectives and Focus of this Study

The objective of this study is the review a piece of environmental
legislation from its passage through the complex rulemaking process.
During rulemaking, the. integration of scientific, legal and economic
data forms around the general mandate enacted by Congress.
Environmental law has recently emerged as an attempt to formulate
workable policy to protect the environment. Toxic substance law
illustrates the process of specific rulemaking within legal, scientific
and economic restraints. A study of toxic substance legislation
investigates the diverse disciplines inherent in such rulemaking and
attempts by a federal agency to formulate workable environmental
policy.

This study focuses on the process of rulemaking under the Inventory
section of TSCA. Congress passed TSCA to regulate toxic hazards in the
environment. The Act mandated E.P.A. as the regulatory agency, with
responsibility for monitoring of the chemical industry in commerce. The
enormity of this task was magnified by E.P.A.’s inexperience with such
forms of prospective regulation. A case study of the Inventory section
illustrates the Agency’s attempt to regulate a complex environmental law
with potentially large economic effects. Such economic effects could
impact in many ways upon the American economy. TSCA represents both a
potentially powerful force on an important American industrial sector
and a shift in the structure of environmental law. It deserves an
in-depth study of the regulatory processes employed by E.P.A. TSCA also
illustrated a more general situation within environmental law. The
study of internal decision making within E.P.A. illustrated the process

of weighing and drafting regulations with a controversial and limited

14

information base. Congressional intent in TSCA emphasized a prospective
long-range plan for toxics control. The question emerged as to whether
the Agency could formulate this new format of Environmental Law given
the established process of Administrative Law and the amount of
available information. Three specific topic areas have been chosen for
study:

1. What was the state of scientific evidence for evaluating
the effects of toxics in the environment?

2. What procedural (including statutory) requirements faced
E.P.A._ when regulating toxics?

3. What steps did the E.P.A. take to translate the
prospective intent of TSCA into workable regulations?

3.

4.

S.

6.

9.

10.
11.

12.

13.

14.

15.

16.

17.
18.
19.

15

REFERENCES
Druley, Ray M. and Girard L. Ordway. The Toxic Substances Control
Act. The Bureau of National Afairs, Washington, D.C. (1977), pg.
10.

Odum, Eugene P. Fundamental; of Ecology. Third Edition,
Philadelphia, Pennsylvania (1971), pg. 3.

Ibido, pg. 23-24

Bazelon, David L. "Risk and Responsibility," SCIENCE, 205, 20
(July, 1979), pg. 277.

Carson, Rachel. Silent Spring. Fawcett Crest Book, Greenwich,
Connecticut (1962) pg. 24.

Ibids, pg. 16.

Turner, James S. The Chemical Feast. Grossman Publishers, New
York, New York, (1970).

Carter, Luther. "How to Assess Cancer Risks," SCIENCE, 204 (May
1979), pg. 813.

Cori, Gio B. "The Regulation of Cancer Hazards," SCIENCE, 28
(April 1980) P8. 257.

Ibido, p80 257‘258.

Carter, op. cit., "How to...," pg. 813.

Mitler, Marshall L. Toxic Substances Control II, Proceedings of
the Second Annual Toxic Substances Control Conference, December
8-9, 1977, Washington, D.C. Government Institutes, Inc., pg.
72-730

Trosko, James E. and Chia-Cheng Chang, "Genes, Pollutants and Human
Diseases," QUARTERLY REVIEWS OF BIOPHYSICS ll, 4 (1978) p. 608.

Conversation with Dr. James Trosko.

Epstein, 8.8. "Environmental Determinants of Human Cancer, CANCER
RESEARCH, 34, pg. 2425-2435.

Trosko, James and Chia-Cheng Chang, op. cit., "Genes,
Pollutants...," pg. 606. -

Milter op. cit., "Toxic Substances...," pg. 73.
Supra n. 16.

Id.

 

16

20. Walsh,.nfluh "EPA and Toxic Substances Law: Dealing with

Uncertainty" SCIENCE, 202 (November 1978), pg. 608.

21. Supra n. 3.

22. 42 U.S.C. 4321

23. Reorganization Plan No. 3 of 197C , 3 C.F.R. 1072.

24.
25.
26.
27.

28.

29.
30.
31.
32.
33.
34.

35.

36.

42 U.S.C. 7401 et. seq.
33 U.S.C. 1251 et. seq.
7 U.S.C. 135 et. seq.

PeLe 94-469, 15 U.S.C. 16010

Completely excluded from coverage under the Toxic Substances
Control Act are the following: Firearms and ammunition subject to
taxes under Section 4181 of the Internal Revenue Code, 26 U.S.C.
4181; Food, food additives, drugs, cosmetics, or devices regulated
by the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301, _e_t_
seg.; Meat and meat products regulated by the Federal Meat
Inspection Act, 21 U.S.C. 601, et seq.; Eggs and egg products
regulated by the Egg Products Inspection Act, 21 U.S.C. 1031, ELF.
seg.; Poultry and poultry products regulated by the Poultry
Products Inspection Act, 21 U.S.C. 451, et seq.; Any pesticide
regulated by the Federal Insecticide, Fungicide, and Rodenticide
Act, 7 U.S.C. 136, et seg.; Tobacco or any tobacco product; Any
source material, special nuclear material, or byproduct material
regulated by the Atomic Energy Act, 42 U.S.C. 2201, et seq.

Walsh, op. cit., "E.P.A. and the...," pg. 598.
56, 15 U.S.C. 2605 (e).

§7, 15 U.S.C. 2606 (f).

Conversation with Dr. Daniel A Bronstein.
Supra n. 32.

§5, 15 U.S. (2605) (a).

"New Enforcement System: E.P.A. Tracks Toxic waste," Detroit Free

Press, 19 November 1980, p. 15c.

Culliton, Barbara J., "Toxic Substances Legislation: How Well are

Laws Being Implemented" SCIENCE, 201 (September 1978), pg. 1198.

37. 52, 15 U.S.C. 2601 (b) (1).

17

38. This data was obtained during an interview with several members of
the E.P.A. staff.

39. 58, 15 U.S.C. 2607 (b).

 

Chapter II

_ A CASE STUDY OF THE TOXIC SUBSTANCES CONTROL ACT

Introduction

In this chapter TSCA will be discussed in more detail. Agency
actions during official rulemaking will be emphasized. TSCA’S unique
prospective approach to environmental protection generated much
confusion among the E.P.A. staff. A dearth of available information
also made the Agency dependent on outside actors for policy input and
review. The scale of the regulations required E.P.A. to combine
technical, economic, legal and scientific disciplines into a coherent
rule structure. E.P.A. was to oversee the entire chemical industry but
it was expected that its

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 Act to assure

that such innovation and commerces in such chemical substances

and mixtures do not presept as unreasonable risk of injury to
health or the environment.

A fine balance between human health and environmental quality had to be
struck within the economic viability of the industry. This general
section set the tone for the later controversies among the interest
groups and Agency staff. Congressional intent may appear obvious, but
drafting this idea into a practicable regulation required E.P.A. to
define the Act across very diverse disciplines.

TSCA provided a study into innovative regulation. This research
was the culmination of three years of observation of the Agency

wrestling with the Inventory.2 It was an opportunity to follow a

18

19
selected regulation through the administrative process. The Inventory
has importance to the rest of TSCA under E.P.A. and the more generalized
system of Administrative Law. A brief legislative history is included
to show the record of Congressional intent which guided the Agency

through its rulemaking .

Legislative History

In 1971, the Council of Environmental Quality submitted a report
which outlined the toxic substance problem.3 Public concern and the
report created the impetus for the first attempts at toxics legislation.
The Nixon administration drafted a bill and E.P.A. submitted the draft
bill to Congress in February 1971. E.P.A. would be designated as the
responsible agency, restricting the use or distribution of a toxic
chemical. Both the House and Senate passed versions of the bill but,
Congress adjourned prior to a conference on the separate versions. No

toxics legislation was passed in the 92nd Congress.4
Senators Philip Hart (D-Mich.), Warren G. Magnuson (D-Wash.), and

John V. Tunney (D-Calif.) reintroduced the bill in the 93rd Congress.
The prospective status of toxics legislation emerged as debate centered
on the power E.P.A. would exercise over premarket testing. The Agency,
under premarket testing, could control the sale and distribution of a
chemical.5 Industry would be required to submit evidence that an
individual chemical was not toxic prior to its marketing. This concept
was based on F.D.A.’s experience controlling drugs. Controversies such
as the chlorofluorocarbon releases to the environment were not
adequately controlled by other statutes. The regulatory mechanism

6
chosen by Congress was to control a toxic substance in commerce. This

 

20

mechanism would mitigate present threats and plan a long-range program
to control future emissions.

The 93rd Congress appeared to have ample time to achieve a
settlement between the two Houses. The House and Senate passed
dissimilar toxics bills but conferees had over a year's time to reach a
compromise prior’to adjournment. Little action was taken and no
compromise was reached. Again, the toxics legislation was deferred to
the next session of Congress.7

The 94th Congress passed the Toxic Substance Control Act, ending
nearly six years of debate and compromise. Senator John V. Tunney
submitted S-776 on February 20, 1975.8 Individuals who had been active
throughout the five years of legislative action acknowledged a sense of
urgency. Tunney and other legislators said the 94th Congress was the
last time they would sponsor toxics legislation.9 Individual House and
Senate bills were considered, and compromise continued with the House
version substituted as S-776 and passed by the Senate.

The conferees met in September 1, 1976, intending to compromise
further until an acceptable bill was finalized. Procedures for
controlling a chemical pending completion of testing presented a point
of contention but the conferees compromised to complete the process on

September 14. Both Houses favorably voted on the conference report with

the Senate vote 73-6 in favor, and the House 360-35.10 The bill was

then sent to President Ford.

The bill, received by President Ford, was the result of many
compromises effected by special interest group activities. The chemical
industry (with the exception of a major corporation, Dow Chemical

Company) accepted some form of regulatory control as inevitable.11 They

21
presented the most extensive data base on the subject of toxics and
pressed for limited controls. Environmentalists and labor unions
claimed a more vigorous control of chemicals via the chemical industry
would better protect the general public. Labor union support was a

critical factor just prior to final action by the House and Senate.12

Other federal agencies voiced concern that E.P.A. was delegated such
broad powers and discretion over an entire industry.
E.P.A. Administrator Russell E. Train and Council of
Environmental Quality Chairman Russell W. Peterson had
consistently stated the need for the legislation and supported
its enactment, the Office of Management and Budget (hereafter
OMB) had opposed it. OMB had written a letter of support for
the McCollister bill, but when the House Commerce Comittee

reported H.R. 14032, OMB opposed itq3premarket notification
requirements as unnecessarily broad.

The resulting bill sent to the President was based on the less strict
regulation found in the House version.

Again, the adjournment of the Congressional session had the
potential to delay toxics legislation another year. The support of the
bill in Congress implied an adequate margin was possible to override a
Presidential veto, but the session was over on October 2, 1976, and the
President had not signed or rejected the bill. President Ford had the
power to "pocket veto" by simply holding the bill without signing; thus
Congress would be unable to take any action on a toxics bill until the

95th Congress.14
The delay indicated a "pocket veto" was to be expected, but instead
President Ford signed the bill into law on October 11, 1976. He praised
TSCA saying: "I believe this legislation may be one of the most
important pieces of environmental legislation that has been enacted by
.. 15

the Congress . Ford’s signature on TSCA surprised members of the

E.P.A. staff and the various interest groups.16

22

The focus of the Act was its Inventory section 58b, which required
E.P.A. to draw up a list of all chemicals which were produced or
distributed in commerce during the three years prior to the passage of
the Act. These chemicals were to be "grandfathered" in, forming the
basis of the information system required for E.P.A. to regulate the
chemical industry. A chemical not so "grandfathered" in was defined as
a "new" chemical and was subject to E.P.A. review of the available data
prior to its manufacture and release. Congress intended the Inventory
to be the base for all subsequent regulation under TSCA. Section 8b

stated:

1) The administrator shall compile, keep current and publish a
list of each chemical substance which is manufactured or
processed in the United States. Such list shall at least
include each chemical substance which any person reports,
under section 5 (Manufacturing and Processing Notices) or
subsection (a) (Reports) of this section, is manufactured in
the United States. Such a list may not include any chemical
substance which was not manufactured or processed in the
United States within three years before the effective date of
the rules. In the case of a chemical substance for which a
notice is submitted in accordance with section 5, such a
chemical substance shall be included in such a list as of the
earliest data (as determined by the Administrator) on which
such a substance was manufactured or processed in the United
States. The Administrator shall first publish such a list not
later than 315 days after the effective date of this Act. The
Administrator shall not include in such a list any chemical
substance which is manufactured or processed only in small
quantities (as defined by the Administrator by rule) solely
for the purposes of scientific experimentation or analysis or
chemical research on, analysis of, such substance or another
substance including such research or analysis for the
development of a product.

2) the Administrator may, in lieu of listing, pursuant to
paragraph (1), a chemical substance individually, list a
categorylpf chemical substances in which such substance is
included.

The language of the Act granted broad discretion to the Administrator of
E.P.A. An Inventory was needed to set the foundation for future
regulation, but the scope of the information needed to compose a list of

chemicals was not clearly defined.

23

The Administrative Process

 

The intent of TSCA was debated among the E.P.A. staff.18 Congress
defined only a general framework of action; E.P.A. was to draft a range
of specific regulations. Some members of Congress voiced doubts that
the scientific, legal and economic disciplines required by the Act would
blend together; several expressed fears that TSCA would not be
implemented.19

The five year debate in Congress resulted in a massive skeleton of
general goals. The Congressional framework required strengthening by
the responsible agency with regulations. Congress established some of
the more restrictive definitions but was unprepared to wrestle with most
technical issues. E.P.A. undertook informal rulemaking procedures to
generate applicable regulations. This would include notice of hearings
published in the Federal Register, hearings, solicitation of comments,
proposal of draft rules, more public comment and the publication of
final regulations. Publication of the Agency's rules and external
comments in the Federal Register made the process public. A citizen
could review a comprehensive file of the public record at agency
headquarters in Washington, D.C. Ideally, the informal rule-making
process encouraged the flow of appropriate information into and from the
regulating agency. Chapter III will discuss this process and the
Administrative Law process will be discussed in more detail in chapter
III.

Any regulation under TSCA required an interdisciplinary blend of

economic, scientific and legal judgment. The Inventory was not an

exception as it contained crucial definitional questions and

24

responsibilities. As the first regulation processed under TSCA, the
Inventory forced many of these interdisciplinary problems into the open.
Major administrative hurdles for E.P.A. included assembling a competent
staff and directing the staff through the regulatory- process. Some
definitions, compelling staff action on parts of the Inventory and
subsequent regulation, appeared in the Act. Accepted scientific or
industrial terminology was often defined differently by Congress; this
created administrative difficulties for E.P.A. Other key definitions,
left to E.P.A. discretion, demanded staff attention. Attempts at
formulating interdisciplinary regulation required various types of
expertise from the E.P.A. staff. TSCA was a unique environmental
statute through its prospective status and its technical-administrative
format; the Act required an extremely diverse staff with extensive
experience.

One technical aspect of the Inventory impacted on the entire
regulatory process. The Act mandated the completion of the Inventory

20

within 315 days of passage. Even cursory reviews of 58b prompted all

21 This initial

involved to express doubts that the goal could be met.
Inventory list was closed on May 19, 1980; after that date substances
could no longer be included on the list without undergoing

22 TSCA was signed on October 11, 1976, so the

premanufacture reviews.
regulations missed the deadline by years.
E.P.A. addressed its administrative problems and prescribed much of

the subsequent action undertaken on technical issues such as the time

frame. The Staff’s administrative problems will be discussed first.

25
Administrative Issues

The Presidential election in November of 1976 changed
Administrations, and thus created a "lame duck" situation for
legislators and the agencies. Established programs and agencies
including E.P.A. took a cautious "wait and see" posture until the new
Administration took control. Congress passed TSCA in October of 1976;
it had neither functioning staff nor budget present in E.P.A. The "lame
duck" mentality stalled most immediate staff action on TSCA. Most of
the limited attention TSCA received was from upper level administrators
or non-functioning staff members. These upper level civil servants
initiated the regulatory process of the Inventory without direction from
the political levels or help from the technical groups within the
Agency.23

The technical issue of the 315 day timetable prompted those on the
staff to immediately begin drafting regulations for the Inventory.
Regulations were compiled in December of 1976 and January of 1977. A

minimal amount of information was required.24

E.P.A. feared any
expansion beyond a simple list would delay the Inventory past its
statutory schedule.

The Pesticides Office provided TSCA with additional staff and
subsequent technical expertise. Staff from the Pesticides Office in
E.P.A. were used to provide technical and, especially, chemical
knowledge. E.P.A., in the "lame duck" situation, felt these individuals
had the most appropriate expertise in the Agency to regulate toxics.
However, TSCA’s unique prospective nature was contrary to any previous
environmental policy from the Pesticides Office. Though the staff had

applicable technical knowledge to comprehend toxics problems, it lacked

administrative experience with a prospective law.

 

26

Draft regulations for the Inventory were completed by this most
skeleton staff. Review by the Agency, at large, awaited the arrival and
briefing of the new Administrator's staff. E.P.A.’s political and
policy individuals reviewed the Draft, presumably to change any
confusing or conflicting language. Little public record is available to
review what events happened at this time. Only minor modifications were
imposed and the regulations became public when published on March 9,

1977, in the Federal Register.25
The timetable forced the staff to draft regulations requiring only

a list of chemicals in commerce. Issuance of the March 9, 1977, draft
regulations prompted the entry of interest groups into the
administrative process. Environmental/public interest (hereafter
environmental) groups used the public comment period to go on record
against the limited Inventory concept. They demanded expansion of the
reporting under the Inventory to generate more data and inform the
public. E.P.A. had just acquired Douglas Costle as. the new
Administrator to end the "lame duck" confusion. Costle was informed of
the concerns voiced by the environmental groups which apparently had
some effect. The Administrator announced that the Inventory should
require more than the minimum cited in the draft regulations. His

announcement of this policy shift came during a television interview on

26

"Face the Nation" on May 27, 1977. He had not conveyed his decision

to: members of the TSCA staff prior to the interview; staff members were

shocked and confused by the unexpected expansion of the Inventory

without clear guidelines as to how to proceed.27

In addition to the confusion surrounding the expansion of the

Inventory, E.P.A. faced the administrative problem of directing a

27

growing staff under a new statute. The Carter Administration decided
early on, to centralize TSCA’s regulatory process in Washington, D.C.28
This centralization of the rulemaking activity was assumed to be the
logical means to handle a large-sale federal action. New staff were
needed to form the expanded Office of Toxic Substances (hereafter OTS)
in E.P.A. headquarters. OTS was to be responsible for the rulemaking
under TSCA and all new staff were concentrated in Washington. With the
expansion, previously low level staff were suddenly promoted to be

responsible for entire sections of the Act because they were the only

individuals with any experience with TSCA.29

Centralization of OTS concentrated the power and scope of rule
making in the headquarter’s staff. None of the administrative duties
were allocated to the regional offices of E.P.A. No comment on the
proposed regulation from the regions can be found in the public record.
Communication was often initiated by the regional staff, unaware of the
progress or direction of the regulations. The regions were briefed
through a headquarter’s "road show"; information was given to the
regions at the same time as the general public. Further erosion of the
regional staff’s input into TSCA came with the establishment of the
"Office of Industry Assistance" (hereafter OIA) in Washington.
Traditionally, the regions had served as intermediaries between the
industry and E.P.A. headquarters: centralization in the OIA removed the
regions from an active position on the Inventory (and subsequent)
regulations. The regional staff felt ignored by headquarters and OTS;

this resulted in disinterest, confusion and alienation in the regional

offices.30

28

The centralization of OTS prompted severance of established. ties
with the regions and allowed rapid promotion of relatively low-level
staff at headquarters. A very technical orientation emerged in the OTS
staff which lacked regulatory and policy experience. Promoted
individuals concentrated on the technical issues within their expertise.
After Costle's announcement of an expanded Inventory, no one in OTS
below the level of Acting Assistant Administrator had a broad overview
of TSCA's goals or policy. The staff was segregated into small

31 Communication

committees in OTS to work on specific technical issues.
within the levels of E.P.A. ignored the regional staff and did little to
encourage the long-range planning approach of a prospective law. The
emphasis of the OTS became increasingly fragmented.

The expansion of the OTS staff further fragmented the Inventory
regulations. E.P.A. hired many individuals directly from out of
undergraduate and graduate programs at universities. E.P.A. encouraged
continual transfers of individual staff from one environmental program
to another. For example, TSCA "borrowed" staff from the Pesticides
Office during the beginning of the Inventory process.32 With the influx
of new staff, OTS acquired many people with little experience either
outside or inside the Agency. Most of the OTS staff joined the
Inventory effort after the initial proposal. Incomplete files and
public record of previous Agency action hampered attempts to educate
neophyte staffers. It was not surprising that staff members complained

33 The lack of

of confusion and the lack of available information.
continuity and comprehensive policy review allowed for the repetition of
mistakes as the administrative process progressed. Outside actors

became a necessary source of input and information.

29

When reviewing E.P.A.’s administrative procedures during the
Inventory rulemaking, three groups of external actors must be given
close attention. These were other involved governmental agencies (both
state and federal), environmental groups and chemical industry groups,
all of whom attempted to influence OTS during the Inventory rulemaking.
Governmental agencies acted generally as ineffective change agents.
State governmental officials were frustrated by the same centralized
bureaucracy which ignored its own regional staff. The tradition of
E.P.A.’s use of regional offices to link Washington with the states was
neglected.“ Even individuals within E.P.A. designated to serve as
"state liasons" were based at the regional level and not utilized. With
no communication established, the states submitted written comments just
like an individual citizen. The states offered little information to
OTS, and they only requested clarification of policy during the formal
comment period.35

Federal agencies utilized correspondence, written comments and
information more often than the regional offices of E.P.A. Generally
the issues centered on questions of jurisdiction. These were areas of
jurisdiction which expressly pre-empted TSCA’s application. TSCA had
specific prohibitions to exempt chemicals already controlled by the
F.D.A., the Treasury, and Agriculture Departments. Each of these
agencies reminded OTS of their power to monitor toxics in specific

sectors of the human environment.36

Attempts were made to lessen the
possibility of conflict and agency infighting. The Occupational Safety
and Health Administration (hereafter OSHA) was more supportive of TSCA

and offered information and shared its experience of regulating toxics

in the work place. OSHA even lent staff members with appropriate past

30

experience to OTS.37 Confusion at E.P.A. during the drafting of the

Inventory was found to a greater degree in the Consumer Products Safety
Commision (hereafter CPSC). Internal problems consumed the CPSC's time;

38

hence it had little input into the Inventory. Other federal agencies

submitted comments on individual parts of the Inventory, but as a rule,
offered little concrete data or input.39

Special interest groups, such as the environmental groups, took a
far more active stance, exerting concerted pressure during the
administrative process. Their use of informal interaction and formal
comments influenced specific sections of the rulemaking. The
Environmental Defense Fund (hereafter E.D.F.) emerged as the leader
among environmental groups. E.D.F. had a Washington office and an
experienced staff to consider the complex issues surrounding toxics in
the environment. In fact, it was the publication of comments made by
E.D.F. 's Jacqueline Warren in the Washington Post which led to Costle's
public announcement expanding the scope of the Inventory."0 E.P.A.
staff members felt Ms. Warren was of great importance in determining the

future functions of OTS; she appeared a crucial factor in the early

months of Costle's administration.“

Other environmental groups were active in the administrative
process. Citizens for a Better Environment (hereafter C.B.E.) had a
technical staff working on toxics regulation, especially the Inventory.
Its impact was expected to be considerable due to its expertise and
high visibility. The Chicago-based C.B.E., however, was often shut out
of the daily routine by a centralized OTS. This situation mirrored the
lack of feedback available to E.P.A.'s regional staff and the state

governments. C.B.E. even considered moving its TSCA staff to a new

31

Washington office to better influence the Inventory regulations."2 The

Natural Resources Defense Council (hereafter NRDC) and the Sierra Club
provided only formal comments on the Draft Regulations. This deviated
from the active role these groups had played earlier in the actual

passage of TSCA.43

Overall, the environmental groups complained that
their input and information had been ignored by the agency. E.D.F. had
been the most influential of all the groups but not as successful as the
environmentalists desired.“

A concentrated industrial reaction also emerged in the rulemaking
process; the effort was basically coordinated by the Manufacturing
Chemists Association (which has since changed its name to the Chemical
Manufacturers Association or CMA). Influence came from CMA members
during the comment period and through the use of CMA staff in
Washington. CMA’s Washington staff addressed the problem of the
centralized OTS. CMA solicited select pressure from specific trade
associations or firms when such input could influence or inform the OTS
staff.

Such select pressure affected the TSCA staff as the Act provided
E.P.A.’s first opportunity to regulate the entire chemical industry.
The Agency knew comparatively little about the industry’s organization
and structure. The lack of information forced E.P.A. to ask for
pertinent information from the most obvious source, CMA, or undertake
its own investigation. The Inventory’s timetable made the second option
impossible. Environmental groups argued that this data would present a
less than accurate picture of the industry and even staff members of

E.P.A. expressed doubts that a regulated industry would be objective

when presenting such information to a regulating agency. There is no

32

evidence to show, however, that the CMA data had not been assembled in
good faith."5

CMA, serving as the chosen representative for the diverse chemical
industry, provided information for E.P.A. Its soliticitation and
coordination of its members' formal comments also cast CMA as an
organized, potent advocate. Members of CMA received letters urging a
response to E.P.A. in the formal comment period. Industry directed most
of the comments towards crucial sections of the regulations and
definitions considered the most damaging. Response by members generated
considerable comments in the public record; excessive costs to the
industry or TSCA’s effect on research and innovation formed the bulk of
the comments.46

To summarize, several key administrative facto’rs influenced the

rule making process for TSCA’s Inventory section and its subsequent

regulations.

1. Once OTS was centralized in Washington, it selected
against input by its regional offices and the states
governments.

2. The centralization magnified the importance of
Washington-based environmental and industrial groups while
it lessened the impact possible from non-Washington
groups.

3. Little policy direction from the upper levels of E.P.A
forced an inexperienced technical staff to make policy
decisions.

4. As OTS expanded in size, low-to-middle rank staffers were
rapidly promoted to policy level positions without the

benefit of additional training or guidance.

33

5. The OTS staff did not grasp the broad conceptual picture of
TSCA’s regulation, instead it directed attention to discrete, unrelated

technical questions.

The Technical Issues

The technical issues can be separated into three main categories:
legal-scientific, legal-economic and legal-administrative. Problems
with definitions in the Act and Inventory regulations originated in the
first two categories; legal scientific issues included definitions of
"mixture", "intermediate", "inpurity" and "byproduct"; legal-economic
concerns included definition of "small manufacturer ’and’ small
quantities for research." The remaining category was the
legal-administrative problems involving the creation of procedures to
meet E.P.A.’s legal obligations: the examples considered are the
reporting of amount and site of manufacture, and the preservation of
industry confidentiality without restricting entry of new producers.
These categories may appear somewhat arbitrary and relative due to the
interconnections among the separate problems. They are used as the most

coherent formula for analysis.

gal-Scientific Definitions

"Mixture" was a term defined in the Act itself as "a combination of
two or more chemical substances if the combination does not occur in
nature and is not in whole or in part, the result of a chemical
reaction."47 "Mixtures" were not to be reported for the Inventory; the
components (the two or more chemical substances) were to be reported

individually. Technical staff at E.P.A. stated "The tem mixture under

34

TSCA has a meaning which is different from its usual meaning. Many
compositions commonly considered to be mixtures are ”chemical
substances."48 The accepted definition of ”mixture” to the chemist was
”two or more substances which are mixed, but not chemically combined.
Mixtures are non-homogeneous and may be separated by mechanical
means."49 However, the staff drafted the initial regulations of March 9,
1977, with the Act's definition intact. The statutory definition was
enanded with specific combinations such as solutions, hydrations,
stabilizers, coloring agents, anti-oxidants, _e_t_c_._ which were being
excluded from the Inventory.so

This regulatory definition prompted much formal coment, all of
which requested revision of the term "mixture”.SI Therefore, the
re-issuance of Draft Regulations on August 2, 1977, redefined "mixture"
to include only the statutory language and hydrates.52 New categories
contained definitions to expressly exempt the other listed exceptions.
The staff defined the exemptions as ”chemical substances excluded from

53

the Inventory" and not a "mixture”. No further changes in the

definition of ”mixture” emerged in the Final Regulations of December 23,
1977.54
Few memos explicated the internal staff's deliberation of
"mixtures.” The principal chemical consultant on the Inventory staff
argued for a definition similar to what eventually appeared in the final

form because it would lessen industry confusion and administrative

55

problems for E.P.A. Technical staff at E.P.A. received their desired

changes in policy only after outside comments during rule making

demanded this re-definition.

35

Similar problems blending technical terminology with the statute
faced the staff on the issues of "intermediate," "impurity" and
"byproduct." The following description of these terms is included to
better illustrate the definitional questions. Picture the following
manufacturing process:

Chemicals A and B are put in a vessel‘to produce chemicals C

and D

(i) A+B->C+D.
Chemical D is then withdrawn from the vessel and chemicals E
and F are added resulting in chemicals F and G

(ii) C+E+F-—>F+G.

Chemical G is then withdrawn from the vessel and piped to

another vessel where it is stored for one month before it is

added to chemical H to produce the desired product, chemical

I. A small but inseparable amount of chemical J which is not

desired but is unavoidable is also produced

(iii) G + H -> I + J

while chemical F is reclaimed and stored until the next batch

is ready for processing. To the chemist or chemical engineer

the characterization of these chemicals is quite clear

Feedstocks (raw materials) A, B, E, H

Product I
Byproduct D
Intermediates C, G
Calatyst F

Impurity J

36

The accepted technical definitions are added here to explain the
industry and E.P.A. staff's difficulty with combining chemical terms
with applicable legal thought. An intermediate bore these general
definitions "usually a derivative of the "crudes" or raw materials"56 or
the industrial definition of, "an organic chemical produced because it

is the necessary intermediate stage in the manufacture of one or more

"57

ultimate end products such as dyes, drugs, etc. An impurity was a

chemical produced in a chemical reaction as a trace residual when the

reactants transformed into the resultants. Generally it resulted from

less than pure chemical reactants being used.58 A byproduct was defined

as "A material obtained in addition to the principal or primary material

"59

in a manufacturing process. The term calatyst also appeared in the

Inventory regulations. It had been previously defined by the technical
literature as

A substance whose presence changes the rate of chemical
reaction without itself undergoing permanent change in its
composition. Catalysts may be accelerators or retarders.
Most inorganic catalysts are powdered metals and metal oxides,
chiefly used in the petroleum and heavy chemical industries.
Vitamins and enzymes are afiganic catalysts of the chemical
process in the (human) body.6

The first Draft Regulations in March 1977 defined an intermediate as

any chemical substance 1) deliberately present in a reaction
sequence...whose presence is known or reasonably as

certainable, and...could be isolaged and identified. ..in the
environment or 2) is a—catalyst.

The definition expanded to include the "reasonably ascertainable" and"
identified in the environment" to address problems presented by specific
industrial practices. Such industries as the pulp and paper
manufacturers knew that in their vats there were chemicals that had
never been isolated or identified but which were transient; 123;, which

never left the vessel.62 The regulations defined intermediates as

37

"chemical substances" required by the Act to be included in the
Inventory. E.P.A. never explicitly stated this inclusion in the rules.
The definition re-proposed in August, 1977, removed catalysts.63
Other' changes were minor from the March draft. Both intermediates and
calatysts were still included in the definition of "chemical substance"
used for a "commercial purpose".64 TSCA’s language required this
reporting for the Inventory. E.P.A. never defined the term "calatyst"
during the regulation process.65 The staff also proposed that chemicals
used only on one site be so designated. They informed Administrator
Costle of the low regulatory priority as such chemicals were unlikely to

present environmental hazards.

Public comments on the listing of intermediates and calatysts were

predominately from technical associations and the chemical industry.
These comments opposed the new listings because of the possible cost

increases forced upon the regulated industries.66

This position of
resistance by the chemical industry appeared surprising. Anything
listed in the Inventory was "grandfathered" in and required E.P.A. to
prove it dangerous. Should a substance not be in the Inventory, the
responsibility for proving the chemical to not be a hazard rested on the

producer.67

An expanded Inventory removed more of the later testing
burden imposed on the industry. Little data, except from the industry,
was presented, so one was left to assume the industry’s objections
regarding cost were accurate and in good faith.

In the Final Regulations of December 1977, E.P.A. redefined the

term to accommodate some of the industry objections. The OTS staff

defined an intermediate as,

38

a chemical substance...removed from the equipment in which it
.‘was manufactured and...either is consumed in chemical
reactions...for the intentional manufacture of other chemical
substance(s) or mixture(s) or is intentionally present £85 the
purpose of altering the rate of such chemical reactions.

An explanatory footnote explained that

equipment in which it was manufactured includes the reaction
vessel [and ancilliary equipment]...and other equipment
through which [it]...may flow...but does not include ta or
other vessels in which the chemical substance is stored.

The "chemical substances which are not intentionally removed from the
equipment in which they are manufactured" were excluded from the
Inventory, yet the intermediate was considered a "chemical substance"
and had to be reported.70 As the internal action memorandum explained,
this separation "should significantly reduce the costs of reporting and

at least some of the potential claims of confidentiality".71 E.P.A.

attempted to streamline its procedures after vocal opposition in the
comments emerged from selected industries such as pulp and paper
manufacturers.

The administrative process also evolved the definitions of
"byproduct" and "impurity" until the Final Regulations were established.
In March, a by-product was "a secondary chemical substance produced
during the manufacture, processing, storage or end use of another

"72

chemical substance...(if it) does not appear only as an impurity. At

the same time an impurity was "a chemical substance which is

unintentionally present in another chemical substance".73 The March

regulations further provided that, "any chemical substance which is (1.)

only an impurity or (ii) only a by-product not used for any commercial

purpose, is excluded from the initial inventory."74

The timetable
constraints were assumed to be a factor. The only explanation was that

"E.P.A...considered but decided to postpone gathering information on

39

bY'Pl-‘Od'N-t8 and impurities".75 Both the cost and delays inherent in

further research could have caused E.P.A.’s decision.

Public comments from industry predictably endorsed the exclusion of
byproducts and impurities from the Inventory. The phrase "not used for
commercial purposes" prompted requests for clarification from the Agency
staff. Some by-products from chemical processes are burned as fuel,
used as fertilizer, £t_c._, which gave‘them commercial value. Industry
representatives questioned the staff with-inquires about whether or not

76

such by-products were included in the Inventory. By contrast, little

environmentalists activity focused on the exclusion of by-products and

impurities. A few groups responded but their comments were relatively

muted in tone.77

E.P.A. modified the definition of by-product to accommodate

industry concerns. The August reproposal defined by-product to be "a

chemical substance produced without separate commercial intent". No

78

change in the definition of impurity was proposed. These categories

of chemicals were still exempted from the Inventory. An answer to
previous comments from the various industries in a note stating that if
a by-product "has commercial value...as a fuel...for enriching soil
or...[as a source of] component chemical substances...it may be included

in the Inventory . "79

This statement did little to answer industry
concerns because of its ambiguous language. I
The explanation presented by E.P.A. for its exclusion of impurities
and byproducts appeared in the introduction of the August re-proposal.
Certain chemical substances which are not manufactured for
distribution in commerce as chemical substances per se and

have no commercial purpose separate from thgomixture or
article of which they may be a part are excluded.

40

This statement did little to answer industry questions or
environmentalist objections. Staff members relied on the language of
TSCA to limit the Inventory to only "chemical substances manufactured or
processed for commercial purposes.'"81 E.P.A.'s strict interpretation of
the Act here may be contrasted to its simultaneous attempts to broaden
its data collection capabilities. Site and volume data on chemical
production desired by the staff were admittedly beyond _E.P.A.'s
authority under §8b; however; the Agency decided to collect such data
for the Inventory. The public record gave no evidence why by-product
and impurity information could or could not also be collected by the

Agency . 8 2

The Final Regulations adopted the August proposals.83 E.P.A.

published a new explanation for the exclusion, assuming to answer the
various comments. A staff statement settled the issues around
by-products that "as a matter of policy, the Agency has decided that
by-products which have no commercial purpose shall not be reported for

"84

the Inventory. Staff members also dismissed questions over

impurities by saying that "as a matter of policy, this first Inventory
should not distinguish among chemical substances which are identical
except with respect to their impurities."85

This stance was a policy decision made within E.P.A. It was

possibly directly from Administrator Costle’s desk, or it was chosen

from the basic recommendations of alternatives proposed by the TSCA

staff. As a matter of fact, there are no documents in the public files
reflecting any consideration or discussion of this matter at any level.

Costle's predecessors had discussed this topic; it is possible the

86

policy decision was formed then. E.P.A. staff still under the Ford

41

Administration had discussions in January 1977 with several

representatives of the environmental groups and CMA. No records

87

documented this interaction. The lack of a comprehensible public

record and filing system was evident throughout research on the
Inventory. The Agency would have been better protected by an extensive
record of the options considered during the administrative process. A
complete and documented record offered a strong answer to possible

charges brought by interest groups charging the Agency acted in an

"arbitrary and capricious" fashion when writing a regulation.88

Though
the OTS staff expressed fear over possible litigation, it kept little
record of its internal procedures and review of technical decisions.
Several staff members complained that most of the basic reasoning behind
policy decisions could only be found through the questioning of
responsible staff.89

A review of the final regulations in light of the public comments,
indicated E.P.A. attempted to conceptualize the legal-scientific issues
raised by the industry. Statutory language and the difficulty of
phrasing an accepted scientific concept into an operable regulation made
the resulting regulations a composite of traditional chemical and legal
ideas. The chemical industry did not receive all of the concessions it
demanded during the administrative process. Exactly what E.P.A.
achieved in the regulation of the Inventory is presented below. The
chart illustrates the chemist or chemical engineer’s classification and
E.P.A.’s own classification of substances for the Inventory. Also the

Chart includes E.P.A.'s final requirements for reporting under the

Inventory. (See Chart I)

42

Recall the reactions (1) A + B->C + D, (ii) C + E + F-->F + G, and

(iii) G + H->I + J:

 

 

 

CHART I

Substance Chemist E.P.A.

A, B, E, H feedstock (chemical chemical substance (reperted)

substance)

C intermediate substance not intentionally
removed from equipment (not
repgrted)

D byproduct Byproduct (not reported unless
has commercial value

F catalyst intermediate (repgrted)

G intermediate ' intermediate (repgrted)

I product (chemical chemical substance (reperted)

substance)

J nmpurity impurity (not reported)

 

 

‘ngal-Economic Definitions

The chemical industry expressed concern that the regulation by the
federal government would dampen research and innovation of new chemicals
and technology. Fear centered on the control of new product development
or technical grade chemicals used for laboratory purposes. Debate in
Congress during TSCA’s passage noted this fear. An exemption for such
chemicals was mandated, but the specific definitions were left for
E.P.A. to complete.90

"Small quantities for research" was the notation E.P.A. drafted

into the March 9, 1977, regulations. The staff added three general

criteria: a chemical could be produced in "quantities no greater than

necessary, used solely for such purposes,‘ and are used "or directly

43

supervised by a technically qualified individual."91 E.P.A. drafted
explicit language in the preamble that the definition "is intended to
include quality control testing."92 A "technically qualified
individual" was chosen to supervise because of his/her awareness and
training. These individuals would be aware of risks and lessen the
likelihood of toxic release to the environment. Knowledgeable control
by such an individual would monitor uses and exposure.

OSHA and the labor unions sensitized E.P.A. to the threat of toxics
in work places. The subsequent definition was not "intended to remove
any responsibilities to inform workers of hazards to which they had been
exposed." The staff had explored two other options to define "small
quantities for research." One suggestion proposed a numerical base
amount for all chemicals but was judged to be too broad and
indiscriminate. The second alternative was a more individual numerical
base set for specific classes of chemicals. Staff discussion of the

administrative costs and delays forced the rejection of this option. 93

EPA modified the definition in the August 2, 1977, reproposal with

the removal of "are...used solely for such purposes."94

No explanation
could be found in the Federal Register or any section of the Agency’s
record. Several staff members assumed the action was to remove
redundant language because the "quantities no greater than necessary"
remained in the draft Regulations.95

When the final regulations were completed, the August 2 definition
remained intact. An additional section was added: "NOTE--any
chemical-~[produced] in quantities of less than 1,000 pounds annually

shall be presumed to be--for research and development puposes." A

substance was not to be included on the Inventory unless "certif[ied]

 

44

research and development".96 The 1,000 pound exemption emerged into the
public record but exemplified the poor record-keeping by the Agency
staff. No published mterials, inter-office communication or public
files document the origin of this concept. Cements by various
industries requested an established numerical base for a consistent

policy, but none described a limit of 1,000 pounds.97

This addition to
the Final Regulations ran counter to the initial March preamble which
eliminated a one set numerical base as an option. Exactly how or why
the 1,000 pound limit was adopted was not documented by the staff. The
"small quantities for research" concept generated much interaction

between the industry and OTS but the incomplete record sheds no light on

this sudden shift.98
The technical issue of the Inventory timetable limited the initial

regulations of March 1977 to the minimum amount of information required
in §8(b). The Inventory required no exemption for groups defined as

"99

"small manufacturers. Administrator Costle’s decision to expand the

Inventory included information reportable under §8(a)(3)(b).100

E.P.A. had made progress defining "small manufacturer" prior to the
expanded Inventory requirements. The initial TSCA staff in December
1976 established the criteria judging the level of industrial activity.
The Standard Industrial Classification (SIC)28, "Chemicals and Allied
Products" provided aggregate industrial census data. This information
could be categorized by gross sale percentages (i_.__e_._ 902 of firms had
gross rates of SR; 801 had gross sales of $Y, _e_1_:_<5_._).101 The staff would

then choose a category which provided the needed information. An

embanded Inventory fueled a more critical staff review of this method.

45

E.P.A. lacked experience in regulating the chemical industry, but
Congress had presented the Agency with a clear mandate to utilize the
expertise found in the Small Business Administration (hereafter S.B.A.)
on the issue. .The two agencies began discussion on the definition of
"small manufacturer." S.B.A. utilized a broad concept of small business
to award loans and contracts. E.P.A. calculated that this general
definition weakened the regulations and allowed the exclusion of up to
ninety percent of the firms which produced more than forty percent of
all chemicals. Both agencies agreed that the S.B.A. definition was

inappropriate for E.P.A. regulatory purposes.102

E.P.A. went in two directions to obtain a workable definition.
First, an external consulting firm, Arthur D. Little (hereafter Little),
was contracted to study the cost to the aggregate group called small
manufacturers. Since no agency had previously regulated the entire
chemical industry and E.P.A. was a novice in this form of regulation,
more data was needed. Little coalesced the fragemented data on costs
.e_t_g_._ from industry, especially the trade associations. Use of an
outside contractor to collect and process data was and still is a common

practice within E.P.A.103

This is most common when economic analysis of
.a large data base is required in the process of regulating an industry.
TSCA possessed a technical staff primarily of chemists, or of policy
analysts, so it was not surprising that economic consultants were
hired.

The lack of information initiated E.P.A.’s second action. A
"Straw-Man Definition" became a strictly internal agency concept; it had

no basis in current economic or industrial practices. Use of a

stringent "Straw-Man Definition" was discussed within E.P.A. to force

46
the industry to counter with their own data and ideas. This idea

illustrates the discretion within the administrative process to bargain
during the early regulatory drafting. It was an option solely to gain

more information for internal policy decision making within the
Agency.104

Though the August 2, 1977 reproposal presented a very restrictive
definition, it was not as rigorous as the "Straw-Man" concept originally
discussed within E.P.A. The staff considered several conditions prior
to exempting a manufacturer due to size. A manufacturer could have
"only a single manufacturing site and either-total annual sales of less
than $100,000-or-items [less than] 2000 pounds annual production--of

each—chemical . "105

The Agency proposed under this definition to exempt
up to twenty percent of the companies in the Industry which accounted
for less than one percent of total sales. Staff members needed more
information and data, so a less forceful option than the "Straw-Man
Definition" emerged. E.P.A. requested information when it solicited
"comments on this proposal definitionwincluding any quantitive data on
the estimating costs of compliance the number sizes and types of
firms-(and) other information. "106 The OTS staff received information
in industry comments and the draft report from Little. OTS consulted
E.P.A.’s own Economic Analysis Division who further recommended
modifications to the definition proposed. Suggestions included 1.) that
the "single plant" requirement be removed from the definition; and 2.)
that the sales figure of at least one million dollars and the production

figure be 100,000 pounds to establish a clear cut-off point for "small

manufacturers " . 107

47

EPA assembled three alternatives from the available data and
circulated them in the internal action memorandum for the December Final
Regulations. Two charts (here condensed into one, see Chart II), listed
the options as one million dollars and 100,000 pounds; five million
dollars and 100,000 pounds; and ten million dollars and 100,000 pounds.
These different categories represented the levels below which any
manufacturer could fall and be exempted from the Inventory.108

The E.P.A. staff discussed the Final Regulations with the SBA prior
to publication. The Agency reasoned that the definition should be set
at five million dollars due. This level of production was judged to
generatea workable data base to monitor smaller producers without an
undue burden being placed on the smallest producers. E.P.A. decided the
cost difference would not be as important as the loss of information and
chose the five million dollar limit. The SBA accepted this reasoning
and the five million dollar limit to define "small manufacturer."109
EPA’s own staff acknowledged a lack of depth in the internal analysis.
In an Action Memorandum, the following note was circulated:

NOTE: If there had been more time, a more complete

analysis-~could have been prepared. The Economic Analysis

Division advises that the Agency may be critized for the

failure to prepare a more thorough analysis although the

Office of General Counsel believes that the Little analysis

satisfiesltBe requirements under TSCA to consider the costs to
industry 0

Costs to industry had to be considered when balancing the impacts of

toxics on the environment.111

The final regulations established the
five million dollar level to define which manufacturers could be

exempted from the Inventory due to small size.

‘48

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49

Legal-Administrative Problems

 

This section reviews the basic problems found in TSCA which were
not technical definitions. One of the major thrusts of the Act revolved
around the creation of a comprehensive data base for future policy'
decisions. Congress mandated that E.P.A. was to become a repository of
pertinent data from the diverse chemical industry. The staff defined
the scape of the Inventory and the amount of information required by the
expanded 58(b). E.P.A. was responsible for the regulations and a
structure to process the submitted information. TSCA mandated E.P.A. to
consolidate the fragmented data base and to create an appropriate
information system for future reference. E.P.A. had no experience with
this form of a comprehensive information system.

The ”lame duck" situation discussed earlier affected the Agency's
attempt to establish an information system in the March 9, 1977,

1'12 TSCA's timetable for the Inventory forced the core staff

proposal.
to propose a very limited information requirement. A combination of the
cautious "lame duck" status and desire to comply with the Act pressured
the staff to ask only for the reporting of chemicals produced by company
headquarters. A similiarly restrictive option was considered to rely
only on existing lists of chemicals. Other alternatives for the
collection of data included production volume, use, by-products, etc.
113 The staff abandoned any expansion of the Inventory with these
alternatives because of the imposed 315 day schedule. Future regulation
would require at least the identities of the manufacturer, so the staff
rejected the use of only existing chemical lists.114

Environmental groups actively opposed this limited information

Inventory. The March 9, 1977 proposal prompted an immediate

50

reaction and a meeting was scheduled between the staff and the

115 The

representatives of six groups within one week after publication.
Acting Assistant Administrator (AAA) attended and summarized the
environmentalist position to be, "that E.P.A.’s proposal was timid,
contrary to legislative intent and inadequate to enable E.P.A. to
properly assess chemical risks".116 The AAA informed his superior, the
Administrator, of this interaction. The AAA stated; "It is my
preliminary opinion that the final reporting rules...should be expanded
to produce basic production and use information."117

E.P.A. staff voiced opinions for expanding the Inventory concept.
The Departments of Labor and Health, Education, and Welfare (hereafter
HEW) submitted similiar objections. Both agencies communicated their
concerns to E.P.A. through the formal comment period. Their objections
stated that a mere listing of chemicals had little potential information

“8 Predictably, formal comments by industry lent support to the

value.
limited Inventory regulations, but specific forms and agency procedures
generated confusion among them. E.P.A. received requests from many
actors for clarification of E.P.A. of the reporting procedures.119

As mentioned earlier, the memorandum from the AAA to the
Administrator pressed for an expanded Inventory early in the

120 Lower level staff at E.P.A. admitted

administrative process.
surprise and confusion at the Administration's announcement to broaden
the information gathered.121 The extent of communication between the
upper-levels and the functioning TSCA staff appeared scant. Memoranda
within the Agency’s files discussed the expansion of the Inventory. Poor

record-keeping by the staff left these memoranda undated. The exact

progression in the evolution of the regulation cannot be determined.

51
The first memorandum bore no indication of origin and was titled
"Scope of Inventory Reporting Requirements." It was stamped "DRAFT"
with internal evidence dating the report between April 1 and May 9,
1977.122 The four policy options under consideration are listed and
paraphrased below:
1) A simplification of industrfal reporting could be
instituted by not forcing duplicate reporting among firms
or trade associations.
2) Regulation under the proposed March 9, 1977 rules.
3) Expansion of the March 9, 1977, rules to include reporting
of site "and/or-whether-the chemical is utilized only as
a chemical intermediate within a closed system."
4) Use of alternatives 2) and 3) could be enlarged to require
a report of "current use of each chemical and current and
projected production levels.123
A small work group had been formed among the OTS staff targeting
issues related to the Inventory. They received a briefing of several
comments pertinent to the March 9, 1977, regulations in the second
memorandum, also undated. Two federal agencies, the Office of
Management and Budget and the Department of Labor, formally commented
that E.P.A. should "consider asking for reporting by plant site".
Internal pressure from the E.P.A. regional staff also petitioned for
this expansion. The OTS staff was then informed "that we should
consider expansion of the proposed Inventory reporting requirements to

"124 The third memorandum

include plant site and production information.
was an internal policy statement discussing the unexpected expansion of

the Inventory required by Costle’s announcement. It spoke to the staff

52

confusion and the proper direction for the new policy. Staff members
were encouraged to

accept the slippage [of the time limits in TSCA]. Plan, if
necessary, to publish an incomplete list initially. An
incomplete list will not meet the requiremsgts of section 8(b)
(1) of TSCA and we are likely to be sued.

No announcement of the Administrator’s decision to expand the
Inventory had been forwarded to the functioning work group in OTS. When
the Administrator made his decision is not clear but can be assumed to
have been mde shortly before the. interview on May 29, 1977.126 The

shocked staff either heard the policy shift on live television or waited

for the confirmation from the Administrator’s office.127 Desire to meet

the statutory timetable was evident. Confusion over the best route to

achieve an expanded Inventory within the time constraints troubled many

staff members. The memorandum which urged the issuance of an
"incomplete list" was an attempt to release something to satisfy the
Act.128 With the expanded Inventory the staff had to assess and propose
the scope of information required and the Agency’s system to utilize the
data.129

The August 2 re-proposal resulted from the two options presented in
an action memorandum from the AAA to the Administrator. If the Agency
maintained the March 9 regulations, without change, a duplication of

reporting could occur. The March 9 rules required every manufacturer of

a chemical to report. Discussion by the AAA cited the generation of

identical data by the non-chemical companies as examples:

In the pulp and paper industry, pulp mills manufacture sodium
hydroxide--as part of their recovery processes—[under this
approach] there would be more than 400 establishments
reporting they ijbufacture sodium hydroxide [in the pulp and
paper industry]."

53

Such a duplication of data created more administrative responsibility
for E.P.A. but produced no new information.

A more practical option emerged when the AAA structured the

reporting to be only from firms in SIC Group 28131

Petroleum Refining.132 The AAA recommended usage of these established

and Group 2911,

categories. Using SIC groups reduced the number of firms involved from
225,000 to a more mnageable 20,000. These categories were more easily
administered but still listed over ninety-five percent of all chemical
production in the United States.

The Administrator’s announcement of an expanded Inventory was
incorporated into the August 2 re-proposal. The regulations included
site and quantity information in the Inventory. Uses of chemicals were
not required by the rules, as the Agency feared this data would be
difficult to collect and process. The staff judged the concern over the
statutory timetable to be paramount, so the use data wasnot
proposed.133

Industry met these regulations with an organized comment campaign.
The inclusion of site quantity data in the Inventory initiated the bulk
of the comments. Allegations by the various industries attacked these
rules alleging undue economic burdens and illegal Agency discretion.13l‘
Federal intervention further countered E.P.A.’s progress drafting the
regulations. The Census Bureau refused E.P.A.’s request for the names
of firms in SIC Groups 28 and 2911. TSCA’s work group was informed
"(w)hile we might learn these SIC designations from the manufacturers
directly, OMB has formally objected to E.P.A.’s relying on Census

"135

designations for enforcement purposes. The lack of information

transfer within federal agencies continued; however, O.T.S. did continue

54

to pursue the expanded site and quantity data. A desire to ease the
administrative burden caused the staff to suggest three different
combinations of site and quantity data. They were:

1) The name of chemical by site, quantity by corporate

headquarters

2) selected chemicals by site and quantity, the remainder

by corporate headquarters

3) reporting by corporate headquarters with a list of plant

sites by zip code, number of employees and/or quantity in

terms of pre-set ranges of quantities.136

These alternatives produced the .possibility of an explicit proposal

which minimized the economic burden on industry while generating usable
data for the Agency. OTS responded in part, to the comment period

pressure from the industry.

The Inventory staff re-worked the alternative proposals for the
next three months. It combined the various options into a final product

which both the staff and the Assistant Administrator found workable. An

action memorandum discussed the final rules:

Defining-in terms of those manufacturers in SIC grOups 28 and
2911 posed unanticipated legal and administrative
problems--the Census Bureau has serious reservations

concerning E.P.A.’s use of the actualBSIC designation that the
Bureau assigns to each manufacturer.

A change in the regulatory language overcame the resistance of the
Census Bureau. E.P.A. no longer needed the Bureau's actual manufacturer
,identification; it required data on any site where thirty percent by
weight of its products were "of the types described under (SIC) group 28

"138

or 2911. OTS assumed a more strenuous standard was necessary as the

proposed option might "not include [some] large volume manufacturers

55

whose production-accounts for less than one-third the weight of the
total products they distribute."139

The expanded proposal contained two new criteria. One, the earlier
use of the SIG 28 and 2911 categories remained in the new language.
Two, if a company produced a total of one million pounds of all
chemicals on site or at least 100,000 pounds of one chemical per site,

140

all chemicals had to be reported in the Inventory. These criteria

answered internal concerns by the staff to offset possible exemptions
for the larger firms.

Industrial comment had emphasized that the economic burden inherent
in an expanded Inventory exceeded the Agency’s authority. OTS read
these comments but found little concrete information to substantiate the
industry claims. The Agency acknowledged potential costs and adopted a

series of "ranges" for reporting. The ranges were set up for production

data in multiples of ten, except at very high levels of production, here

each range was split in two. These were published in the Federal

4 4«105 pounds,

5-106 pounds, 106-107 pounds, 107-5 x 107 pounds, 5 x 107-108 pounds,

9

Register as: less than 103 pounds, 103-10 pounds, 10
10
108-5 x 109 pounds and over 10 pounds.141 "Ranges constituted general
categories for the specific amount of production retained by the
manufacturer. A manufacturer needed to offer E.P.A. only the general
category when it reported for the Inventory. E.P.A. still compiled the
necessary data within ranges while expressly addressing the industry

consents to lower the costs.

Comments challenged the legality of the expanded Inventory

prompting another change in regulatory language. Industry contended

56

that the site and the production volume E.P.A. requested was beyond the
scope or intent of §8(b). An explicit statement by E.P.A. avoided this
controversy, explaining that
[plroduction volume information is not being required to
publish the inventory under section 8(b). This information is
being required under the general authority or section 8(a) of

the Act, to require submififiion of information necessary for
the administration of TSCA.

Once the Administrator re-directed the staff to expand the Inventory,
formal comments from industry emerged and influenced the regulation.
Controversy over this rulemaking was multi-faceted; including such
factors as, economic definitions, feasibility, methodology and utility
of alternative information systems. These factors produced a weighting
of alternatives by the E.P.A. staff. Environmental groups originally
requested an expanded Inventory but confined their efforts during the
regulatory'process to countering industry claims of confidentiality for
all forms of submitted data. Confidentiality of the requested data was
the most difficult legal-administrative problem facing E.P.A. in the
Inventory.

The economic considerations in the expansion of E.P.A.’s data base
through §8(b) revolved around the cost 'of compiling the data and then
processing it into useful form. Industrial costs resulted from the
compiling, organizing, and submitting data according to prescribed
procedures and forms. The Agency’s cost originated in the formlation
of a workable policy to process the incoming data and to establish a
viable information base. Confidentiality as a concept necessitated more
than the relatively simple calculation of a cost outlay to generate a
data set. The central issue in the confidential data was the protection

of trade secrets vis-a-vis the public’s "right to know." A trade secret

57

represents a tangible, but often not quantifiable, economic advantage to
the parent manufacturer. E.P.A. accepted this concept but had no system
to protect the holder of a trade secret. Confidentiality is an example
of the interdisciplinary problems inherent to the Inventory and TSCA as
a whole. The economic value of trade secrets had to be evaluated by the
staff and defined in a legal manner for the regulation. It raised
questions as to how the information system could be administered to
protect trade secrets. Environmentalists commented on the ethical
question of the public’s right to protection and knowledge. Without an
open data base, they feared, no member of the general public could
evaluate the Agency's regulation of the chemical industry.

TSCA itself provided little direction for the staff as the
legislation was poorly written. This judgment is apparent in the
obvious conflict found with two other sections of the Act, relevant to
the confidentiality question in the Inventory. Trade secrets are

143 while §8(b)144 requires all substances to be in: the

45

protected by 514
Inventory and 551 says premanufacture notice (hereafter PMN) and
review is not needed for the substances already in use; for they are
listed on the Inventory. The Inventory was intended to list all
chemicals presently in commerce. The one-time Inventory established the
present data base on chemicals in use.146 The provision allowed PMN any
chemical listed on the Inventory to be "grandfathered in" to the law and
therefore exempted from testing prior to manufacture.147 PMN was
on-going data collection, monitoring and screening for all new chemical
substances. E.P.A. built on the initial Inventory to define new

chemicals. However, the three sections were interpreted by the various

actors to give conflicting responsibilities to E.P.A.

58

E.P.A. admitted that these conflicts existed when the initial March
9, 1977, proposals were drafted. Special regulations such as the
consideration of confidentiality concurred with the minimalist stance

and scope of the Inventory. E.P.A. proposed to use existing Agency

148

rules governing confidential information. The regulations required

only the following special provisions to substantiate a claim of
confidentiality; the real name, a proposed name ”only as generic as
necessary to protect the confidential identity," the elements composing

and molecular weight of the substance, and a bibliography of literature

concerning the substance and its effects.149

Formal comments on the March 9 rules underlined the confusion and
resistance found in all the interest groups commenting. Industry cited
the bibliography concept as contrary to the protection of trade secrets.

If the substance was found in the literature, its confidentiality would

150

be lost. However, state governments in their comments, complained

that they were unable to obtain confidential information to better

protect their citizens. They felt ignored, treated no differently than

151

a private sector competitor. Interest group comments resisted the

language of the March 9 rules. Policy on confidentiality prompted

further debate and coments, urging subsequent Agency clarification.152

Before the August 2 re-proposal, the staff re-drafted the policy on
these issues raised during the first comment period. Industry applied
the most concerted resistance, and the E.P.A. staff acknowledged the
pressure on this issue. Technical members of the staff without
industrial experience lacked the skills to manage controversy.153

Compromise on this issue appeared unlikely hence E.P.A. was unsure

how to proceed. The Inventory staff broke the confidentiality issue

59

into three main sub-issues and some smaller ones and proposed

alternative solutions to each. The August 2 re-proposal presented these

alternatives to stimulate further comment.

E.P.A. needed more feedback,

especially from the industry as to what procedures would be the least

011813008 0

The Agency listed its questions in the preamble to the August

reproposal as:

1.

3.

What substances may be confidential?

(a) any and all,

(b) those limited to one site,

(c) none;

How should confidential substances be handled on the published

inventory?

(a) no indications that any exist,

(b) generic names for confidential substances,

(c) random code numbers for confidential substances,

(d) publish non-confidential list and indicate other do exist;

How to handle PMN’s for confidential substances from new

manufacturers?

(a) tell if substance already reported,

(b) refuse to tell whether already reported,

(c) require current manufacturer to give a PMN and to stop.
production for 90 days at reporting time and new
manufacturer to submit PMN and wait 90 days,

(d) require current manufacturer to submit PMN but not stop
production and new manufacturer to submit PMN and wait

90 days. E.P.A. requested further comments.154

60

E.P.A. attempted to draft regulations for trade secrets governing
the entire chemical industry, a task in which the staff had little

understanding or expertise. The staff scaled down the demand for
information in the March' 9 regulations in the August 2 re-proposal. A
claim of confidentiality required only the real name and proposed
generic name "only as generic as necessary."155 Industry’s pressure
sensitized an unaware E.P.A. staff on this issue. An Action Memorandum
from the AAA underscored this awareness by anticipating industrial
responses. "Industry will focus on the problem of handling claims of

confidentiality. . ."156

The August 2 re-proposal generated renewed comment. These comments

formed the fundamental considerations used by the staff to draft a final
rule. The action memorandum accompanying the final rules in December
specified the options and their strengths and weaknesses as follows:

A. No specific chemical Indentity is Confidential for
Purposes of the Inventory...This approach would be based
upon the conclusions that sections 8 (b) and 5 (a)
override the general mandate of section 14 for
confidentiality because sections 8 (b) and 5 (a) would not
be enforceable if some confidential identities are not
included on the inventory.

Advantages:
1. This is a clean approach. Litigation will result

immediately, and the issue should be resolved soon.
2. Future administrative problems...may be eliminated.

Disadvantaggg:

1. This approach would be viewed by industry as
indicative of E.P.A.’s lack of respect for trade
secrecy.

2. It will create political problems and might result in
pressure in Congress to amend TSCA.

B. Any Specific Chemical Identity May be Confidential.. and
EPA Will Not Disclose the Identity Except as Authorized
Under Section 14...EPA would publish an inventory of only
nonconfidential substances. All Freedom of Information
requests and inquiries from new manufacturers would be
denied.

C.

61

Advantages:

l. ...(W)ould be most popular with industry.

2. It gives full effect to section 14 and shows EPA will
respect confidentiality.

3. Industry will not sue...

Disadvantaggg:

1. The public will have no knowledge...

2. New manufacturers... will not know whether their "new"
substance is in fact new and subject to premanufacture
notification...The effect of this approach would be
anticompetitive.

3. New manufacturers and public interest groups would sue
EPA.

Any specific Chemical Identity May Be Confidential...; EPA
Will Respond to Inquiries From Persons With A Bona Fide
Intent to Manufacture a Chemical Substance. ..EPA would
publish an inventory including all nonconfidential
chemical substances and a list of generic names, a
manufacturer could ask EPA.whether the specific substance
had been reported... EPA would deny Freedom of Information
‘Act requests on the specific identities of these chemical
substances.

Advantages:
1. ...(G)ives effect to both section 14 and sections 8

(b) and S (a). It represents a balance...

2. (P)ublic’s knowledge is greater than Alternative B.

3. New manufacturers have a means of avoiding
premanufacturer notification...,

4. Trade secrets are protected...

Disadvantaggg:

1. There will be future administrative problems... It
will call for findings in connection with future
rulemaking whether identities can be confidential
under the future rules.

2. Some parts of industry will disagree;...litigation may
result.

3. The test for finding a bona fide intent...may be
challenged by industry.

4. Finding bona fide intent will require. ..resources in
OTS to make the determinations.

5. Large numbers of individual confidentiality
determinations will have to be made...

6. This approach does not provide disclosure to persons
concerned with health or environmental hazards...

Recommendation:
Alternative C, because it represents thfi best
compromise... EPA will not appear unreasonable."15

62

The final regulations in December, 1977, permitted a claim of
confidentiality for a reported chemical substance. These rules
finalized the proposed guidelines of the August rules claiming
confidentiality of the actual identity and a proposed generic name no

158

more general than necessary to be required. In addition, the

manufacturer had to provide a written substantiation159 of the

confidentiality claim, and "agree that E.P.A. may disclose to a person
with a bona fide intent to manufacture the substance...the fact that

"160

[the]...substance is included in the Inventory. and a manufacturer

had to agree to furnish to E.P.A. upon request...an x-ray diffraction
pattern...or a mass spectrum...,a sample of the substance in its purest

form, the elemental analysis [and]...other data that may be

161 If a

required...[to establish] the identity of the substance.
manufacturer did not meet the data requirements or the procedures, it
lost the Option of confidentiality. This waiver forced the substance to

be published in the Inventory.162

One issue raised in the comment period connected the possibility of
duplication of data with the emergence of a "new producer" of a
chemical. E.P.A. answered this question with the requirement that such
a new producer had to establish a 13223 as intent with an elemental
analysis, an x-ray diffraction pattern or mass spectrum, a report of all
R & D progress on the substance to date, and a signed statement of
intent to manufacture. E.P.A. requested a sample or any other relevant

information to analyze the chemical.163

The Agency avoided duplication
of reporting, for E.P.A. would review the data originally submitted by

the initial producer to decide if the chemical was included in the

63

Inventory. The rules provided that new producer would be informed if it
chemical had been previously reported; if not, s/he was required to
report it to the Agency.164

Formal comments played a major role in the evolution of the
confidentiality regulations. E.P.A. used the comments to remove
conflicts; the bibliography requirement, for example, was not in the

final regulations.165

Industry organized the most successful campaign
to influence the administrative process. States and, by implication,
public interest groups (including the environmentalists) lost the
opportunity for access to confidential information without meeting
specific, rigorous criteria.166 In effect, E.P.A. denied the
information to these groups. E.P.A. explicitly stated it would deny all
inquiries for confidential information, ignoring all issues raised
during the comment period for all data to be under the Freedom of
Information Act.167
General Conclusions

Specific actions by the TSCA staff during the Administrative
Process formed the Final Regulations for the Inventory. Administrative
difficulties for the Agency emerged as the problem of combining
scientific or economic thought into a legal structure plus the unique
prospective status of TSCA. The study of the Inventory rulemaking
produced the following general conclusions.

The prospective or long-range planning emerged as a source of
confusion for the entire staff. It found no precedents in.the

environmental policy arena. Without an established procedural base, all

levels of the agency lacked the tools to implement the Act. Even upper

64

level Agency staff admitted uncertainty _ over the correct means to
accomplish the prospective intent mandated by Congress. The confusion
fragmented the staff’s efforts to produce a comprehensive, operable set

of regulations when faced with vacillating goals and methods.168

The change in administrations (and the resulting policy) further
fragmented and disorganized the staff during the initial work on TSCA.
Direction from upper level staff was inconsistent; this forced the OTS
staff to coalesce into small "work groups" to attack problems. This
"work group" approach to TSCA isolated the various staff members from
other interrelated components of the Inventory and other sections of the
Act. For example, the fragmentation of the staff came during the
controversy over confidentiality. Conflict between the Inventory and
PMN procedures came from the statutory language. However, the staff
attempt to bridge the two sections was accomplished with great
difficulty. Similar problems also appeared in the rule-making on the
definitions of "impurity", "by-product" and "intermediate".

The confusion generated by TSCA's prospective nature remained past
the change of administrations. Individuals with little Agency
experience were rapidly promoted to policy positions in OTS. Their
inexperience with the Administrative Process in general and especially
with long-range planning offered little insight. Lack of procedures and
the Agency’s inexperience as an industrial regulator resulted in a
general fear of litigation among the staff. Many within OTS were from
technical disciplines and they lacked legal training. The external
groups often threatened litigation during the rulemaking for the
Inventory. The staff’s confusion and inexperience caused them to

retreat from controversy. This further fragmented OTS’s approach to the

65

Inventory. The staff's confusion and inexperience caused them to
retreat from controversy. This further fragmented OTS's approach to the
Inventory. The appointment of a permanent Assistant Administrator is
OTS removed the responsibility of litigation from the inexperienced OTS
staff. Litigation became less of an issue during subsequent
rulemaking.169

Regulation of the chemical industry required the Agency to mass
appropriate information. Centralization of the rulemaking efforts in
Washington cut the feedback loop between Headquarters, the E.P.A.
regional offices, and the States. OTS released information to these
groups at the same time and in the same fashion as the general public.
Little or no information was routed to Headquarters. E.P.A. had little
experience or information but ignored two obvious sources of data and
expertise. It was only in late April, almost six months after the start
of work, for example, that the Washington staff learned that the Regions
would like to have volume and use information included in the Inventory.
Such a constricted process was inapprOpriate especially in light of the
inexperience present in the OTS.

As a matter of established procedure, O.T.S. learned little from
the previous criticisms directed to other divisions in E.P.A.170
Record-keeping was a requirement of the informal rulemaking process,
however, OTS compiled a less than definitive public record. Many
crucial internal decisions were undocumented in the Agency files.171
Litigation was and remains a possibility. It is doubtful that the
Agency held sufficent documentation to convince a court that". . .an act

of reasoned judgement occured, an assumption which further contemplates

the existence of a body of material...[including] statements in various

66

Industry used the comment period effectively during the
Administrative Process. No other interest group succeeded in their
attempts to influence regulatory language and scope. Environmental
groups had definite success only in the expansion of the Inventory to
include volume and site data. E.P.A. did not further expand the
regulations to include use data, requested by the environmentalists.
This does not imply undue or illegal influence by the industry.
Industry, especially through trade associations such as CMA, provided
the bulk of the necessary information. E.P.A. relied heavily on this
data; this represents a tradition among regulatory agencies attempting
to control any major industrial or commercial activity.173
Environmentalists found that this cooperative sharing became a problem.
When industry ceased to assist the Agency, E.P.A. continued to
compromise on specific regulations.174

These compromises centered on the interaction between a regulatory
agency and the various "publics" affected by the issuance of rulemaking.
An understanding of the complex procedures inherent in any regulation of
an environmental issue by administrative law would better explain the
position of an agency relative to external interest groups. The next
chapter will explain the administrative process in light of its general

procedures and their specific impact upon the Inventory regulations

under TSCA.

1.

4.

5.

6.

10.
11.
12.
13.
14.
15.
16.
17.
18.
19.

20.

21. _

67

REFERENCES

 

15 U.S.C. 2601

The research for this study included numerous interviews with
members of the E.P.A. staff, as well as review of all the
available documents. As requested by those E.P.A. staff members,
they are not indentified by name in these footnotes, but the
author is convinced that the information furnished by them
accurately'reflects their perceptions of the process. Hereafter,
these shall be cited as E.P.A. staff interviews.

Council of Environmental Quality, Report, Toxic Substances,
washington D.C., U.S. Government Printing Office, 1971.

Druley, Ray M. and Girard L. Irdway, The Toxic Substances Control
A_c_t_, The Bureau of National Affairs, Inc., Washington D.C., U.S.
Government Printing Office, 1977, pg. 11.

Ibid. pg. 11.

Ibid. pg. 10.

Ibid. pg. 12.

Ibid. pg. 12.

Supra n. 2, Chapter II: A CASE STUDY OF TSCA.

Druley and Ordway, op. cit, "The Toxic Substances..." pg. 12.
E.P.A. staff interviews, supra n. 2.

Interview with Linda Billings, formerly of Sierra Club.

Druley and Ordway, op. cit. "The Toxic Substances..." pg. 27.
Ibid., pg. 27.

Statement by the President, Gerald R. Ford, October 12, 1976.
Supra n. 2.

15 USC 2607.

Supra n. 2.

Druley and Ordway 0p. cit., "The Toxic Substances...", pg. 10-26.
15 USC 2607 (b).

E.P.A. staff interviews supra n. 2a, and interviews with E.
Choffnes, Citizens for a Better Environment; J. Warren,

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.
32.
33.

34.

68

Environmental Defense Fund; S. Gusman, Conservation Foundation; L.
T. Banks, Natural Resources Defense Council; L. Billings, formerly
of The Sierra Club; E. Blair, Dow Chemical, U.S.A.; G. Socha, Dow
Chemical, U.S.A.; written communications from B. Davidoff, Allied
Chemical Corp. See also, Bronstein, "The New Toxic Substances
Control Act," 13 Forum 371 (1978); Bruley op. cit. pg. 13-27.

"Inventory Reporting: Statement of Policy," 45 Fed. Reg. 2652
(4/18/80). A

E.P.A. staff interviews, supra n. 2, indicate the original work
group formulated key positions early in the implementation
process. Normal sharing of personnel was not extensively used as
TSCA’s unique approach did not allow ready use of on-line
officials from the program areas.

E.P.A. staff interviews, supra n. 2, Warren interview, Socha
interview, Supra n. 21.

42 Fed. Reg. 13130 (3/9/77).

Administrator Costle announced this decision while being
interviewed on "Face the Nation", May 29, 197]; See 1 Chem Reg_._
Rptr. 431 (6/3/77).

The effect on the staff came from E.P.A. staff interviews, supra
n. 2 and Warren interview, supra n. 21.

Correspondence and interviews finds little information flow
between head-quarters in Washington, D.C. and the regional offices
of E.P.A. When asked for information a regional official could
only search the Federal Register. When 5. Jellineck, Assistant
Administrator for Toxic Substances was asked about this at a
public meeting he replied that TSCA was to be considered a Federal
program based in washington as toxics could not be controlled at
the regional level. Personal recollection of the author; present
at ABA Section of Natural Resources Law Toxic Substances
Conference, washington, D.C., Nov. 29, 1978.

Attachment to memorandum from K. Johnson, Asst. Adm., to the
Administrator, entitled "Request for Approval of Development
Plan", undated; E.P.A. Staff Interviews, supra n. 2.

E.P.A. staff interviews, supra n. 2; E.P.A. interviews, supra n.
28.

Id.
E.P.A. staff interviews, supra n. 2.
Id.

Correspondence and E.P.A. interviews, supra n. 28.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

69

New York state used the public comment period after the 9 March
1977 Regulations (40 CPR 13/30) to address the issue of toxics as
a state responsibility. See also 8. Jellineck's response to
questions regarding the inputs of states and regions into the
implementation process, supra n. 28.

53 (2) (B) (iii)-(vi), 15 USC 2602 (2) (B) (iii)-(vi). See, e.g.,
letter from Department of Interior to R. Johnson, 6/6/77,
regarding minerals.

See, e.g., report of Testimony of G. Wrenn of OSHA in support of
E.P.A., 1 (Chem Reg. Rptr. 819 (8/26/77); ”Interagency Agreement
on the Regulation of Toxic and Hazardous Substances," 42 Fed. Reg.
54856 (10/11/77).

Despite CPSC's adherence to the ”Interagency Agreement", supra n.
37, E.P.A. staff interviews, supra n 2, indicate that CPSC had no
contribution to make.

Public comments by the Department of the Interior (08lOOl/C.203

and c.21) and Department of Defense (081001/C.86) again
re-iterated agency policy.

The article was Scott, "Toxic Chemicals--E.P.A. Enforcement
Undercuts New Law," Washingpon Post, May 29, 1977, Sect. B, P. 5.
E.P.A. staff interviews, supra 11. 2, gave the information on the
effect of the announcement on the staff.

Although Ms. Warren expressed frustration with her effectiveness,
E.P.A. staff saw her as a powerful force on the Agency. (Warren
interview, supra n. 21, E.P.A. staf interviews, supra n. 2).

Choffnes interview, supra n. 21.

Public comments by NRDC and Sierra Club reflected earlier activity

before the Act was passed. See also, Druley 8: Ordway, op. cit.
pg. 10-11;

The representatives of environmental groups felt that they had
been ”beating against brick walls" and that E.P.A. totally ignored
them. warren interview, Choffnes interview, supra n. 21.

E.P.A. staff interviews, supra n. 2, Choffnes interview, Blair
interview supra n. 21.

The primary technique used by CMA was to send copies of all formal
CMA comments to the members and include such phrases as "we expect
that other interested parties will comment.” Letter from CMA to
Ms. P. Tucker, CEQ, 8/22/77.

§3 (8), 16 U.S.C. 2602 (8).

48.

49.

50.

51.

52.
53.
54.
55.
56.

57.

58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.

70.

70

Response to comment 36, 42 Fed. Reg. 64585 (12/23/77).

Hackk's Chemical Dictionary Third Edition Grant, Julius, ed. ,

McGraw-Hill Book Co., New York, New York, 1944 pg. 542.

5700.2 (3), 42 Fed. Reg. 13135 (3/9/77).

See, e.q., comments of National Steel Corp., Am. Fertilizer

Inst., Portland Cement Assoc., Dow Chemical Corp., etc. collected.
in Sect. 5 of E.P.A., "Summary of Comments Received on Proposed
Inventory Regulations, Revised May 23, 1977" in E.P.A. public
files (hereinafter, "Summary of Comments").

5710.2, 42 Fed. Reg. 39131 (8/2/77).

5710.2, 42 Fed. Reg. 39191 (8/2/77).
§710.(q), 42 Fed. Reg. 64576 (12/23/77).
Memorandum from S. Gusman to C. Kelly 5/1/77.
Grant, op. cit. Hackh’s... pg. 443.

The Condensed Chemical Dictionary,, Fifth Edition, Richhold

Publishing Cr., New York New Yor, 1956, pg. 593.

Id.

Grant, op. cit. Hackh’s..., pg. 152.

op. cit. The Condensed Chemical... pg. 235.
5700.2 (p), 43 Fed. Reg. 13135 (3/9777).
42 Fed. Reg. 13133 (3/9/77).

§710.2, 42 Fed. Reg. 39191 (8/2/77).

Id.

Id.

Supra n. 46.

Druley and Ordway, op. cit. pg. 36-37.
5710.2 (n), 42 Fed. Reg. 64576 (12/23/77).
Id.

5710.4 (d)(8), 42 Fed. Reg. 64578.

71.

72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.

83.

84.
85.
86.

87.

88.

89.
90.

91.

71

"ACTION MEMORANDUM--Promulgation of Inventory Reporting
Regulations" from S. Jellinek, Assistant Administrator for Toxic
Substances to the Administrator, undated (hereinafter, December
Action Mam.) p. 12.

5710.2 (c), 42 Fed. Reg. 13135.

5700.2 (0) id.

5 710.5 (a) (2), 42 Fed. Reg. 13137.

42 Fed. Reg. 13130.

Summary of Cements, supra n. 51, Section 12.

Comments of Natural Resources Defense Council, id.

5710.2, 42 Fed. Reg. 39190, 191 (8/2/77).

5710.4 (d) (l), (2), 42 Fed. Reg. 39192 (8/2/77).

42 Fed. Reg. 39186 (8/2/77).

58 (i), 15 U.S.C. 2607 (f).

E.P.A. staff interview, supra n. 2.

5710.2 (g) (m), 422 Fed. Reg. 64575, 710.4 (d) (l) (2), 42 Fed.
Reg. 64577 (12/23/77).

Response to Comment 52, 42 Fed. Reg. 64587 (12/23/77).
Response to Comment 61, 42 Fed. Reg. 64588 (12/23/77).
Personal communications from members of the Inventory staff.

The author had been told a memorandum exists documenting this
decision, but no copy of it has ever been located.

Home Box Office vs. F.C.C., 567 F. 2d 9 (D.C. Cir. 1977) see
chapter III, n. 49, supra.

 

E.P.A. staff interviews, supra 11. 2.

"The Administrator shall not include in such list any chemical
substance which is manufactured or processed only is small
quantities (as defined by the Administrator by rule) solely for
purposes of scientific experimentation or analysis or chemical
research on, or analysis of, such substance or another substance,
including such research or analysis for the development of a
product." 8 (b) (1), 15 U.S.C. 2607 (b) (1).

5 700.2 (aa), 42 Fed. Reg. 13136 (3/9/77).

92.
93.
94.
9s.

96.
97.
98.

99.

100.

101.
102.
103.
104.

105.

106.
107.

108.

109.
110.
111.

112.

72

42 Fed. Reg. 13132 (3/9/77).
Id.
5710.2, 42 Fed. Reg. 13132 (8/2/77).

Again, no documentation exists, but this is the information
received from some members of the Inventory staff.

5710.2 (Y). 42 Fed. Reg. 64576 (12/23/77).

See Summary of Comments, supra, n. 51 Section 9.

The author was repeatedly assured that documentation on this
point existed but, as it has never been produced, one is forced to
believe this is not so.

15 USC 2607 (b).

"The Administrator, after consultation with the Administrator of
the Small Business Administration, shall by rule prescribe
standards for determining the manufacturers and processors which
qualify as small manufacturers and processors." 8 (a) (3) (b),
15 U.S.C. 2607 (a) (3) (b).

Memorandum from S. Ng to C. Kelly, 12/30/76.

Memorandum from Olsen to G. Schweitzer, 5/23/77.

E.P.A. staff interviews, supra n. 2.

Supra n. 102.

5710.2, 42 Fed. Reg. 39191 (8/2/77). The proposed "straw-man"
defintion had been "10 or more employees or annual sales of
$250,000", Olson memorandum supra n. 102.

42 Fed. Reg. 39184 (8/2/77).

Memorandum from S. Weil to C. Kelly, 10/21/77.

Memorandum entitled "Promulgation of Inventory Reporting
Regulations" from Steven Jellneck to the Administrator, pg. 15,
12/2/77.

December Action Memorandum supra n. 71.

Ids at pg. 9.

Supra n. 1.

See text accompanying n. 23 and 24, supra.

113.

114'.

115.

116.

117.

118.

119.
120.
121.

122.

123.

124.

125.

126.
127.
128.

129.

73

Memorandum from I. Gruntfest to C. Kelly; "ACTION
MEMORANDUM--Proposed Inventory Reporting Regulations" from K.
Johnson, Acting Assistant Administrator for Toxic Substances to J.
Quarles, Acting Administrator, rubber stamp dated 15 Feb. 1977,
pp. 2-3.

Id.

Sierra Club, Natural Resources Defense Council, Environmental
Action, Environmental Defense Fund, Conservation Foundation,
Center for Science in the Public Interest.

Memorandum from K. .Johnson, Acting Assistant Administrator for
Toxic Substances to The Administrator, undated, rubber stamped
"DRAFT" entitled "Comments of Environmental Group
Representatives," p.1.

Id.

Comments of National Institutes of Health attached to memo from D.
Fredrickson, Director NIH to OTS, 5/9/77, p. 2; Letter from E.
Bingham, Asst. Sect., OSHA, to D. Costle, 5/9/77, p. 2;1and, most
particularly, letter from E. Bingham to D. Costle, 6/7/77, p.
3.5.

Summary of Comments, supra n. 51 Section 1.

See text accompanying n. 25-27, supra.

Supra n. 27.

Despite numerous inquiries, nobody has been able to identify this
memorandum more accurately. Hereafter it shall be refered to as
"Unidentified Scope of Inventory Memorandum."

"Unidentified Scope of Inventory Memorandum" pp. 2-3.

Undeted one page memorandum "from C. Kelly to Werk Group‘Members,
Subject: Inventory Reporting Requirements."

Undeted Memorandum from L. Regelson, Senior Policy Advisor, to W.
Drayton, Special Ass’t. to the Administrator, entitled "Issues
with Respect to the Initial Inventory," rubber stamped DRAFT.

See text accompanying n. 25-27, supra.

No copy of this confirmation has been found.

Supra n. 125.

Id.

131.

132.
133.

134.

135.

136.
137.
138.
139.
140.
141.
142.
143.
144.
145.
146.
147.

148.

149.

150.

74

"ACTION MEMORANDUM -- Reproposed Inventory Reporting Regulations"
from K. Johnson, Acting Assistant Administrator for Toxic
Substances to The Administrator, rubbed stamp dated 12 July 1977
(hereinafter, July Action Mem.) p. 2.

Chemicals and Allied Products, see text accompanying n. 1010,
supra.

Id.
42 Fed. Reg. 39133 (8/2/77).

See "response to comments 1-12", 42 Fed. Reg. 64580-1; information
from the Inventory staff.

Memorandum from C. Kelly to Work Group members dated 8/31/77,
p.10.

Id. p. 3.

December Action Memorandum, supra, n. 71, pg. 2.
§710.3(a)(1)(i)(A), 42 Fed. Reg. 64577 (12/23/77).

December Action Memorandum, supra n. 71, pg. 3.
5710.3(a)(1)(i)(B), 42 Fed. Reg. 64577 (12/23/77).

42 Fed. Reg. 64578 (12/23/77).

Response to Comment 4, 42 Fed. Reg. 64580 (12/23/77).

15 U.S.C. 2613.

15 U.S.C. 2607 (b).

15 U.S.C. 2604 (a).

Supra n. 145.

Supra n. 67.

"These types of claims must be asserted in accordance with the
Agency’s business confidentiality rules contained in Part 2,
Subpart B of Title 40 ... [CFR], and will be disposed of 141
accordance with the rules in that part." 42 ed. Reg. 13134
(3/9/77).

5710.6 (d), 42 Fed. Reg. 13137 (3/9/77).

Both industry and environmental groups attacked the proposal on

this basis. See comments of CMA and CBE in Sect. 15, Summary of
Comments, n. 51, supra.

151.
152.
153.
154.
155.
156.
157.
158.
159.
160.
161.
162.
163.
164.
165.
166.
167.
168.

169.

170.

171.

172.

173.

75

See 2:5; comments of States of New Jersey and Virginia, ibid.
Ibid.

Supra n. 2.

42 Fed. Reg. 39188 (8/2/77).

5710.7 (e), 42 Fed. Reg. 39193 (8/2/77).

July Action Memorandum, supra n. 130, pg. 6.

December Action Memorandum, supra n. 71, pg. 9-12.

5710.7 (e)(2)(ii), 42 Fed. Reg. 64579 (12/23/77).

5710.7 (e)(2)(iii), id.

5710.7 (e)(2)(iv), id.

5710.7 (e)(2)(v), id.

Ibid.

§710.7 (f)(2), id.

5710 (f)(4), (5), (6), id.

See text accompanying n. 144, 145, supra.

Response to comment 103, 42 Fed. Reg. 64543 (12/23/77).

Response to comment 101, 42 Fed. Reg. 64592 (12/23/77).

E.P.A. Staff Interviews, supra n. 2.

Private communication from members Of TSCA staff. See also,
Severa "E.P.A. Slow to Act on 3 Year Old Law," N.Y. Times May 6,
1980, Section C, pg. 1.

"It may well be that the public reference procedures Of
this...agency can be improved." Ethyl Corp. v. E.P.A., 541 F. 2d
1 at 49, n. 102 (D.C. Cir. 1976); See also the dissent, 541 F. 2d
1 at 79 (n. 34), 82, 90-91. '

Home Box Office v. FCC, Op. cit., pg. 54.

See, e.g., Metcalf & Reinemer, Overcharge (1967); Lamel, "The
PrOperty Insurer’s Data Group," 9 Brief NO. 3, p. 13 (May 1980).

Druley and Ordway, Op. cit., "The Toxic Substances...," Chapter
2.

76

174. warren, Choffnes, interview, supra n. 21.

CHAPTER III

THE ADMINISTRATIVE LAW PROCESS
Introduction
This chapter reviews the evolution of the Administrative Law
process, emphasizing the regulatory agencies as the instruments.
Procedures and responsibilities evolved gradually into the "fourth
branch of government".1 Its traditions incorporated judicial,
legislative, and executive functions into a structure to administer
specific laws. This broad power developed in response to a perceived
need for a faster, less expensive alternative to the established

executive, legislative, and judicial branches of government.2

Agencies evolved this independent authority, and the court system
and the legislatures allocated power over time. Broad mandates required
distinct technical skills not found in judges or legislators. Congress,
for example, passed TSCA as a directive for action by the most
appropriate agency, E.P.A. Chapter II catalogued the process E.P.A.
followed during the Inventory rulemaking. Chapter III explains the
basic administrative process; determining any form Of complex
environmental regulation of which TSCA is an example.

L The Defintion Of Administrative Law

Administrative Law is defined as "...The law concerning the powers
and procedures of administrative agencies, including especially the law
governing judicial review Of an administrative agency."3 A governmental
authority with the power of rulemaking or adjudication is defined as an
administrative agency. Adjudication is defined as "To settle in the

exercise of judicial authority. TO determine finally."4

77

78

Individuals such as the President or groups (i.e., municipal
commissions or federal agencies). are delegated the powers of rule making
or adjudication by legislative mandate. Both the judicial and
legislative branches of government are excluded from this Option to
"borrow" powers held by other branches.5 Courts are to interpret
constitutional or statutory questions. Their opinions are not intended
to formulate policy, though opinions may actually redefine the statutory
or regulatory intent.6 Legislators retain broad vested power to write
legal mandates, determining the substantive direction Of policy through
legislation. Administrative agents evolved the responsibility for the
creation of subsidiary policy based on the general mandates.

Though regulatory agencies are a small component of Administrative
Law, they receive most of the attention and visibility. Legal theorists
and the general public perceive the agency role as a regulator, even in
daily activities. Regulatory agencies are delegated both general and
specific powers to control human activities. They are created "...Only
by statute, by executive order authorized by statute or by state
constitutional provisions...the principal powers and functions of
agencies are normally defined by the instruments which create them..."7

Administrative Law progressed to its present state often through
judge-made law or dicta defining acceptable procedures. Much of that
dicta was and still is found incorporated into the process.8 This dicta
developed in response to constitutional or statutory controversies. The
body of common law expanded, as other individual cases required court
action with or without obvious links to an Act or the Constitution. The
Constitution restrained the courts from imposing judgment in

non-justiciable matters. Court Opinions only responded when the

7'9

presence of a case and controversy existed.9 A case bore the definition
Of the invocation of judicial power only as a last resort. This came
from the prohibition Of advisory Opinions by a court. Judgments,
subject to revision elsewhere, could be defined as merely advisory,
while court Opinions were intended to be final. A case required an
existing legal authority (3142; a statute or the Constitution), an
adversary situation and affected parties needing a decision.10 A
controversy rested on the premise that the courts made no pronouncements
at large. Abstract Opinions had no value; a controversy required
aggrieved parties in an adversary situation to be present. NO political
questions were to be considered by the courts, only the actual
individual rights recognized by statute or common law.11 The injunction
primarily confined the sphere of judicial influence in the
Administrative Law process as it reacted with statutory or
Constitutional intent.

The growth of the regulatory agency as a unit in the administrative
process originated in a series of incremental changes. Complex or
tedious legislation required the regulating by another group other than
Congress, which lacked procedures to detail applicable rules. The
judicial branch had its powers derived from a history of centuries of
English common law. Federal agencies began less than two hundred years
ago, being relatively recent phenomena. Theoretical concepts defined
the United States government by the separation of powers.
Administrative Law evolved as a practical Option to fill imperfections
resulting from the fragmentation Of powers to solve problems. Certain
agencies (_e_._g_._, E.P.A.) were clearly delegated a blend Of the powers

inherent in the separate judicial, legislative and executive branches.

80

The administrative process expanded by degrees as a set of procedures to

better superintend specific legal problems.

The Evolution Of Administrative Law
Congress began the delegation of the rulemaking powers to agencies
in 1789. A statute instituted the regulation of military pensions but

gave control to the President’s Office.12

This initiated the practice
of delegating responsibility through a specific directive or law.13 The
need for an alternative such as Administrative Law emerged an extension
to the traditional division of duties among the legislative, executive
and judicial branches. Constraints on individuals in the judicial and
legislative branches included lack of time and expertise in which to
formulate detailed regulations. Legal mandates required an increasing
amount of specific technical competence. The structure Of the
legislature and the courts evolved a cumbersome bureaucracy to specify
the necessary controls. Regulation without the delegation of power
implied that the general mandates from Congress could only be applied on
a case-by-case basis through the court system.14

The concept of Administrative Law began unobtrusively with the
first delegation of power in 1789. Congress intended tO create a corps
of clerks to manage the military pension program.15 These clerks spared
the legislators the tedious task of regulation in order to devote more
of their time to more general societal concerns. The delegation Of
power also excused judges from the costly and repetitious tasks of a
case-by-case approach to decision making. Military pensions or patents
needed programs which could be managed cheaply and rapidly by lower-paid

clerks. Thus the delegation of power within Administrative Law began as

an aggregation of clerks processing paperwork and individual claims.

81

The practice of delegating responsibilities proved to be a useful
alternative. Agencies resulted from a considered use Of the
administrative process to regulate human activities under general
statutory guidelines. It developed over time as an extension Of
legislative authority to regulate the public. Congress has developed

9'

this Option since its orgin in 1789 as, ...about one-third of federal

peace-time agencies were created before 1900, and another third before

'16

1930.' Federal regulatory agencies emerged as an identifiable unit

with the establishment Of the Interstate Commerce Commission (hereafter
ICC) in 1887.17 The ICC initiated the example Of the delegation of the
power embodied in an agency. Public outcry motivated the formation of
the ICC to regulate the railroad industry. Railroads had abused various
segments Of the population through their monopolistic control.
Procedures given the ICC included the right to adjudicate, to draft
regulations, to enforce the resultant regulations and to prosecute
Offenders.18 Congress mandated the ICC to regulate the monopoly
structure of the railroads to protect the public from injury. The ICC
represented the first delegation of major power to a regulatory agency.
Thus, Administrative Law underwent a fundamental transition as an
institution. Functional difficulties rendered the legislative or
judicial branches of government incapable Of the complex regulation of
an entire industry. The ICC represented the first of the empowered
regulatory agencies, a practical alternative to judicial or legislative
control.

Administrative Law continued to develop new programs tO control

other institutions such as utilities. One such program established the

Federal Trade Commission in 1913, another example of the developing

82

regulatory agency approach using the ICC model.19 Congress enacted
specific programs and agencies once a problem brought pressure to bear
on the legislators. The administrative process evolved gradually, with
agencies developing as "chameleonic" to meet the individual needs of the

20 Agencies answered the perceived need for a flexible

enabling statute.
alternative with the practicality and applicability of these groups
promoting wider use of the independent agency.

Although administrative process had begun early in the history of
the United States, legal theorists ignored the expanding process for
nearly one hundred years. The legal profession said nothing Of this
process until 1893 when Frank J. Goodnow published the first of his two
books categorizing the process. The first, entitled Comparative
Administrative Law, was a review of English and American administrative
process; American legal structure was further identified in the second
volume, the Principles Of the Administrative Law in the United States,
published in 1903.21

This resistance of the legal profession, expressed in the lack of
publications, did not stifle the enlargement of responsibilities
delegated to regulatory agencies. New Deal legislation in the 1930's
marked an increased use of regulatory agencies to monitor human activity
under Congressional mandates to promote public welfare. The bulk of the
statutes were responses to political pressure for protection from the

22 The National Labor Relations

impacts of the Great Depression.
Board23 (NRLB, 1936) and the Federal Deposit Insurance Company24 (FDIC,
1933) are examples of the expanded role played by the federal government

' and its agencies.

83

During this time, President Roosevelt pressed for the involvement
of the regulatory agencies to mitigate conditions he felt were not to be
in the public interest. The flurry of activity of New Deal legislation
focused the controversy over the separation of governmental powers which

existed until the 1940’s.25

Legal scholars promoted the theoretical
division among the branches, each group serving to oversee the other two
branches. Government implied a separation of powers as
. ..essential to the system that the persons entrusted with the
power in any one of these branches shall not be permitted to
encroach upon the power confided onto others but that each

shall by law of its creation be limited to the exercfige of the
'powers appropriate to its department and no other...

The dispute emerged clearly in the 1930’s. Congress continued its
delegation of power to new or established agencies. Overall, increased
governmental intervention in human activity generated an expansion Of
regulation by distinct agencies. It also expanded the role of an agency
through the power of rulemaking. Congress delegated to an agency the
necessary power to detail regulations implementing the goals of a
specific statute. These rules had the force of law including the power

27 The abstract

to enforce and to adjudicate the detailed regulations.
theory of law relied on the separation of powers while in reality, the
Administrative Law expanded its scope fusing these separate
jurisdictions.

The Supreme Court upheld the traditional theory as late as 1932,
saying "that the legislative power of Congress cannot be delegated is,
of course, clear".28 The delegation of power did continue. An

expanding administrative bureaucracy had developed throughout American

government. Legislators ignored legal theory and embraced the

84

practicality of the administrative process and its instruments, the
regulatory agencies. Resistance to the "fourth branch Of government"
emphasized the illegal delegation to and combination of powers in a
regulatory agency. Real problems pressed for rapid and explicit
answers. Agencies offered a workable alternative to legislative and
judicial procedures alone; complex problems required a volume and
minutiae of regulation.29 Existing institutions lacked the flexibility
and expertise found in a regulatory agency.30 Agencies responded as a
national alternative to an incomplete structure. The judicial and
legislative branches institutionalized such agencies through enabling
acts and court cases. Though beyond the scope of traditional law,
agencies blended the legislative and judicial functions Of separate
groups. Davis summarized the evolution of Administrative Law as
follows:

This system facilitated not merely the promulgation of law

through rules and regulation but the correlation of rulemaking

with such necessary activitiss as adjudication, investigating,
prosecuting and supervising.

Maturing judicial and legislative acceptance of the process resulted in
an expansion Of a regulatory agency’s independence. The autonomy of
agencies was, in part, a function of its acquired judicial powers.
Theoretically, members of the judiciary required a structure not
politically controlled or allied to exercise their duties fairly.
Agencies held these responsibilities therefore they must be also
sovereign.32 The independent status of agencies was given further
institutional support by the unaminous opinion of the Supreme Court
which held "The authority of Congress in creating quasi-legislative or
quasi-judicial agencies, to require them to act in discharge Of their

duties independent of executive control cannot be doubted."33

85
The essential services provided by the consolidated legislative and
adjudicatory powers in agency rulemaking won out over traditional legal
theory. The Supreme Court mirrored its acceptance of this modification
through various rulings on the process of regulation. Opinions
christened the agencies as adjuncts to the three branches of government
in the ruling for the FTC which stated:

To the extent that it exercises any executive power in the
constitutional sense--it does so in the discharge and
effectuation Of the quasi-legislative or quasi-judicial
powers, or as an agen 4 of the legislative or judicial
departments of government.

The Supreme Court also defined the range of powers vested in the
agencies to include judicial procedures. These powers fell within the

scOpe Of statutory law conferring specific powers of review in an

agency.35

Justice Jackson spoke to the reality behind the institutional
growth and legitimization of regulatory agencies as instruments of the
larger branch of Administrative Law. He wrote,

They [administrative bodies] have become a veritable fourth
branch Of government, which deranged our three branch legal
theories such as the concept of a fourth dimension unsettles
our three-dimensional thinking. Courts have differed in
assigning a plan to these seemingly necessary bodies in our
constitutional system. Administrative agencies have been
called quasi-legislative, quasi-executive or quasi-judicial,
as the occassion required, in order to validate their
functions wifgin the separation of powers scheme of the
Constitution.

Judge Jackson’s words came after the controversy between the separation
of power and the actual utilization of the alternative, Administrative
Law, had been settled. Congress continued to mindate new agencies since
the delegation of power to the ICC; a total of sixty three independent

agencies had been established.37

86

Controls Imposed on the Administrative Process

The judieial and legislative branches integrated the agencies, as
"necessary bodies", into an established framework. Delegation of such
power to an alternative institution necessitated the introduction of the
same "checks and balances" controls found in the separation of power.
Autonomy for the agencies required avenues for external review by the
legislative, judicial and executive branches of government. Review of
agency action began in response to concern during the 1930’s that
agencies were expanding in power and number. President Roosevelt
requested each agency to compile a monograph on its administrative

procedures. 38

The independence Of agency action demanded explicit
listing of responsibilities to allay fears that agencies were out of
control. Congress received the separate monographs as a complete
report. A clear procedure of checks and balances was required to
explicate the interconnections Of Administrative Law with the three
older branches of government. Congress reviewed the monographs to
determine the need for legislation to further institutionalize the

checks and balances over agencies. The resulting statute emerged as the

Administrative Procedures Act (hereafter APA).39

APA provided a standardization of procedures for an agency’s
performance. The Act set criteria by which the courts could hold an
agency accountable for its actions. APA incorporated agency procedures
into a framework of action through the institutional set of checks and
balances. The APA building on the earlier court cases further
legitimized the regulatory agency. The Act illustrated the acceptance

of the practical nature of administrative process.

87

APA defined the role of a regulatory agency within the larger
Administrative Law framework as:

(a) This chapter applies to the provisions thereof, except to
the extent that-
(1) statutes preclude judicial review
(2) agency action is committed to agency discretion by
law.
(b) For the purposes of this chapter-
(1) "agency" means each authority of the goverment of the
United States or subject to review by another agency, but
does not include-
(A) the Congress 40
(B) the courts of the United States...

The Courts and Congress possessed the ability to review agency action,
retaining the oversight responsibilities practiced on other units of
government. The specific procedures required during the regulation
process were also codified. Standards of conduct required an agency to
follow this standard or risk a court action brought by an aggrieved
party. APA set up a consistent framework to'minimize unaccountable
agency actions. Congress spelled out the specific procedures inherent .
in the informal rulemaking:

(b) General notice of prOposed rulemaking shall be published
in the Federal Register unless persons subject here to are
named and either personally served or otherwise have actual
notice thereof in accordance with law. The notice shall
include--
(1) a statement of the time, place and nature of public
rulemaking proceedings.
(2) reference to the legal authority under which the rule
is proposed :and
(3) either the terms or substance of the proposed rule or a
description of the subject and isues involved. Except when
notice or hearing is required by statute, this subsection
does not apply-
(A) to interpretative rules, general statements of
policy, or rules Of agency organization, procedure, or
practice; or
(B) when the agency for good cause finds (and
incorporates the finding and a brief statement of
reasons therefore in the rules issued) that notice and
public procedure thereon are impracticable, unnecessary
or contrary to the public interest.

88

(c) After notice required by this section, the agency shall
give interested persons an opportunity to participate in the
rulemaking through the submission of written data views, or
arguments with or without for oral presentation. After
consideration of the relevant material presented, the agency
shall incorporate in the rules adopted a concise general
statement of their basis and purpose. When rules are required
by statute to be made on the record after opportunity for an
agency hearing, sections 556 and 557 of this title apply
instead Of this subsection.

(:1) The required publication or service of a substantive rule
shall be made not less than 30 days before its effective date,
except (1) a substantive rule which grants or recognizes an
exemption or relieves a restriction. (2) interpretative rules
and statements of policy; or (3) as otherwise provided by the
agency for good cause found and published with the rule.

- (e) Each agency shall give an interested person the righzlto
petition for the issuance, amendment, or repeal of a rule.

The courts used the APA to measure agency performance. An

aggrieved party or "interested person" petitioned the court system to

42

review the agency’s mandated responsibilities. APA defined a court’s

scope of review as:

To the extent necessary to decision and when presented the
reviewing court shall decide all relevant questions of law,
interpret constitutional and statutory provisions, and
determine the meaning of applicability of the terms of an
agency action. The reviewing court shall-
(1)- compel agency action unlawfully withheld or
unreasonably delayed: and
(2) hold unlawful and set aside agency action, findings,
and conclusions found to be-
(A) arbitrary, capricious, an abuse of discretion, or
Otherwise not in accordance with the law:
(B) contrary to constitutional right, power, privilege,
or immnity:
(C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right:
(D) without observance of procedure required by law:
(E) unsupported by substantial evidence in a case
subject to section 556 and 557 of this title or
otherwise reviewed on this record of an agency hearing
provided by statute: or
(F) unwarranted by the facts to the extent that the
facts are subject to trial de novo by the reviewing
court. In making the foregoing determinations, the
court

89

shall rexaew the whole record or those parts of it cited by a
party...

General terms such as "arbitrary, capricious, or an abuse of discretion"
were intended to preserve the flexibility of the administrative process
but grant court review. Litigation under APA represented another
evolution in Administrative Law; sovereign immunity no longer protected
federal agents acting beyond the scope of their authority. Sovereign
immunity, as a concept, traced its origins to traditonal English common
law.44

Prior to the APA, an aggrievied party could only sue an agent of
the federal government with the expressed consent of the agency (or
Sovereign). The APA institutionalized standard procedures for agency
activities and made the agency (or Sovereign) responsible in a court of
law."5 Overall, the APA answered the legal questions stemming from the
lack of checks and balances from the traditional three branches of
government. It accepted the institution of Administrative Law to have
autonomy, but alleged abuses of power faced court review. The APA
further widened the accountability of federal agencies by removing
barriers to legal action. Courts exercised the power to oversee agency
performance and consistency.

The dynamic needs for flexible regulation produced the
administrative process and its appropriate legal controls in the APA.
Subsequent amendments to the APA"6 and the passage of the Freedom of
Information Act47 built additional structure and controls into the

administrative process. Broad Congressional mandates required complex

technical interpretation to produce workable regulations. Controversy

90

over the agency’s data and interpretation prompted increasing
involvement of the courts. Since a bulk of the administrative process

used by agencies is defined as informal, the courts were employed to

determine the appropriateness of an agency rulemaking.48

A recent court decision resulted in the clarification of informal
procedures permissible for an agency action. Home Box Office vs.- the
Federal; Communications-Commission (hereafter FCC)49 centered around the
use of experts (Off the public record) communication during the FCC’s
regulation of the cable TV company. Home! Box- Office vs.-the' Federal
Communication-Comission (hereafter Home. Box- Office) generated a court
opinion clarifying the process of agency rulemaking under the APA. The
Washington, D.C. Circuit Court prescribed the acceptable components Of

informal rulemaking as "...an agency must comply with the procedures set

"50

out in section 4 of the APA. Home, Box. Office defined the informal

rulemaking process under section 4 and the legal precedence of previous
areas. The Court stated that:

From this survey of the case law emerge two dominant
principles. First, an agency proposing informal rulemaking
has an Obligation to make its views known to the public in a
concrete and focused form so as to make criticism or
formulation of alternatives possible. Second, the concise and
general statement that must accompany the rules finally
promulgated mat be accommodated to the realities of judicial
scrutiny, which do not contemplate that the court itself will,
by a laborious examination of the record, formulate in the
first instance the significant issues faced by the agency and
articulate the rationale of their resolution...[The record
must] enable us to see what major issue of policy were
ventilated by the informaslI proceedings and why the agency
reacted to than as it did.

Agency evaluation Of policy alternatives was to promote a

documented record of all information and subsequent decisions.

Unrecorded consents or information gathered by the agency lessened the

52

Court’s ability to review an agency’s regulatory activities. E5

91

arte commnication was an example of improper procedures in the Open
forum of Administrative Law. The Court ruled the use of ex parte
communications to be inappropriate in an agency’s rulemaking for it

...would not have the benefit of an adversarial discussion
among the parties. The importance of such discussion to the
prOper functioning of the agency decision making and judicial
review processes is evident in our cases. We have insisted,
for example, that information in agency files or consultants’
reports which the agency has identified as relevant to the
proceeding be disclosed to the parties for adversarial
comment. Similarly, we have required agencies to set out
their thinking in notices of proposed rulemaking. This
requirement not only allows adversarial critique of the agency
but is perhaps one of the few ways that the public may be
apprised of what the agency thigh it know in its capacity as
a repository of expert opinion.

Off-the-record communication between the regulating agency and some
segment of the regulated public prevented a basic premise of judicial
review to function. Without "a full administrative record"54 courts had
incomplete evidence to review the discretion used by an agency during
rulemaking.55 Ex parte comments were more than a circumventor of
judicial processes; such interactions also violated fundamental precepts
of fairness implicit in due process.56 An administrative record
required agencies to faithfully record all communication with an
external interest during the regulatory process, lessening the lack of
accountability found in incomplete documentation.57 The court discussed
the impact of ex p_a_rte comnnnications or other deviations from accepted
procedures to violate the premises established in Administrative Law.
It held that:

Even the possibility that there is here one administrative

record for the public and this court and another for the

Commission and those "in the know" is intolerable. Whatever

the law may have been in the past, there can now be no doubt

that implicit in the decision to treat the promulgation of

rules as a "final" event in an ongoing process of
administration is an assumption that an act of reasoned

92

judgment has occurred, an assumption which further
contemplates the existence of a body of materialndocuments,
comments, transcripts, and statements in various forms
declaring agency expertise or policy-with reference to which
such judgment was exercised. Against this material, "the full
administrative record" that wa§8before [an agency official] at
the time he made his decision. -

"The court explained the role of the judiciary as it is the obligation
of this court to test the actions of the Commission for arbitrariness or

"59 Home Bovaffice served as

inconsistency with delegated authority.
the legal precedent by which courts reviewed the role an agency during
informal rulemaking. It further delineated how a court would judge
agency action via the public record.

Home Box- Office judged exeparte communication to be inconsistent
with the due process concept of fairness. Off-the-record statements
also eroded the ideal of "reasoned decision-making which undergirds all

of our Administrative Law."60

The Court also cited the expansion of the
APA by the passage of the Sunshine Act. Congress mandated the Act to
be, "...the policy of the United States that the public is entitled to
the fullest practicable information regarding the decision making

processes of the Federal Government.n61

Home Box Office formed the legal
precedent and standard for future informal rulemaking procedures
utilized by agencies. It forbade the solitication or acceptance of a
pa_r_t_e_ commnication. Simple record-keeping presented a basic legal
issue but there were implications beyond the documentation of external
contacts. Congress intended the APA and the more recent Sunshine Act to
structure informal rulemaking and to require agency accountability.
Such standards responded to earlier concerns that agencies were not

reviewable or controlled. The case of Home: Box: Office strengthened the

standards of the APA and designated the present purpose of

93

Administrative Law. Home Box‘ Office impacted on any regulatory agency’s
procedures and structure. Home Box. Office represented the evolutionary
status of Administrative Law as an institution within the federal
goverment. The Court addressed the questions about the legality and
utility of the process. Formal controls developed to review the
instrumental agency’s actions, an extension of the checks and balances
previously confined to the three branches of government. The court
accepted the informal rulemaking process by an agency to be the most
logical avenue to form and enforce complex policy.

Administrative Law originally began as an inexpensive alternative
to a structured legislative or judicial approach to policy formulation.
Congress employed the concept of delegating power to a technical agency
with increasing regularity. Regulatory agencies grew in number and
power as legislators accepted the administrative process as a practical
and proper means to achieve detailed regulations. Agencies acted only
through a specific power explicitly conferred by a legislative bOdy.
Legal thought asserted this concept throughout the early to middle
twentieth century. Any power or activities resting in the agency
required a clear mandate. Constitutional prohibition and legal
tradition constrained the courts inferring powers not found in a
statute. The present judicial attitude is a response to a perceived
need for more flexible limits of litigation. Some legal scholars note a
shift toward measuring the extent of administrative power in terms of
the needs of a legislative policy, not in terms of the specific wording

of the statute.62

The Courts responded with a similiar evolution found
in the legislative branch. Legal theory resisted the unsupervised

growth of the regulatory agency; the theory preferred to draw on the

94

precedents of cases and the foundations of governmental structure. The
practicality of the administrative process and its regulatory agencies
forced the evolution of case law and legal theory. The assumption
rested on the idea that regulatory agencies offered the least expensive
and most experienced review. These agencies were practical alternatives
for the drafting and enforcement of specific regulations.

Congress continued to allocate responsibility to agencies under
broad mandates. The Courts monitored the expanding agency role through
the APA and the Sunshine Acts. The applicability of the expanded agency
role to detail effective regulations was debated, especially in the
complex, uncertain arena of environmental protection. This controversy
was defined:

In the United States we are experiencing a transitional period

that reflects general trends of social evolution: regulatory

agencies, which in accord with centuries old traditions have
been allowed to wield quasi-autonomous normative powers, find
themselves increasingly at odds with expanding demands for due

process in the r folution of uncertain perceptions and
conflicting values.

Rule‘Making‘Under~T8CA
Normative values generally rely on the determination of standards,
beginning with empirical evidence and then incorporating newly acquired

64

information. Lack of unambiguous scientific proof fueled the passage

of TSCA, mandating the creation of a data base under E.P.A.'s

guidance,65

yet the Agency was required to formulate rulemaking prior
to the completion of its data collection. Uncertainty affected the TSCA
staff which acknowledged its limited information base.66 TSCA demanded
the framing of acceptable normative values into a policy to regulate

toxics in the enviroment. The evolution of the administrative process

structured the blending of a technically complex problem with an

95

assumedly appropriate administrative bureacracy. Environmental issues
were one such complex problem necessitating agency action. TSCA and
other environmental statutes have inherent scientific, economic and
philosophical controversies. Congress gave E.P.A. the responsibility
for environmental protection in the administrative process but the
Agency was forced to regulate with uncertain data. The difficulty faced
by the regulator, in this case E.P.A., to effectively regulate with
limited information, deserves scrutiny.

Any regulatory action by E.P.A. to mitigate environmental problems
has inherent uncertainties and controversies. Environmental statutes,
are responses with general language and frameworks relevant to the
perceived problem that are passed by Congress as political compromises. -
Congress retains the power to pass critical disputes on to the
regulatory agency involved. Environmental issues present E.P.A. with
responsibilities and limited information, staff, budget and expertise.
This area of Administrative Law is difficult because

The decisions made by E.P.A. under its statutory authority are

seldom simple resolutions of factual disputes; instead, they

involve complex technical issues and controversial value

judgements6that can effect significant numbers of persons and
activities.

Administrative Law has sparked renewed debate because it has been
perceived as becoming dilatory, expensive and generally unresponsive to
societal needs.68 Environmental protection became primarily a
responsibility at the federal level of government. Public concern over
environmental deterioration prompted this concentration of

responsibility as a societal need.69

The focus of this segment on
Administrative Law centers on the present Administrative Law process and

its applicability to an area of great scientific and economic

96

uncertainty, environmental regulation. TSCA, as the first prospective
environmental statute, underscores the resistance to institutional
change and the lack of flexibility found in the administrative process.
Study of the Inventory rulemaking provides more generalizable insights
into the process of regulation and its possible future orientation.
Traditionally, Administrative Law achieved powers expressly
conferred by Congress. Legislators reacted to a definable problem
focussing public concern. Statutes summed up the Congressional reaction
to perceived political situations and needs. Congress mandated agencies
to investigate problems within a general framework. The ICC began this
trend when Congress enacted its regulatory framework to correct abuses
by the railroads. Both regulatory agencies and the judiciary held the
power to act only upon legislative mandates; neither drafted policy
without a statutory framework. Administrative Law incorporatedthe
reactive formula of problem solving into its structure and procedures.
TSCA was the first attempt at expanding environmental regulation
into both a reactive and a long-range prospective plan. This
prospective framework was a fundamental shift Of outlook for the Agency.
Staff members of E.P.A. admitted that their confusion stemmed from thds
unique approacha The staff acknowledged that potential problems
necessitated monitoring in order to protect the public from the release
of chemicals to the environment. Prevention of the release of toxics,
through long-range planning, offered a more reasonable, inexpensive
approach to toxics control. Prospective planning appeared a rational
concept, but few staff members saw a practical means of implementation.
Confusion over this idea prompted staff complaints that TSCA could not

be implemented, as it stood.70

97

Lack of precedent found in the administrative process, and in
previous environmental regulation, magnified the E.P.A. staff’s
resistance to change. Regulation previously emphasized the mitigation
of immediate environmental problems. The reactive nature of the
administrative process, used previously by E.P.A., was in Opposition to
TSCA’s new format. A conflict going beyond simple resistance to change
emerged. The Agency drafted regulations in a climate Of uncertainity
and inexperience. The flexibility of early Administrative Law had been

71 E.P.A. staff found little support for

encumbered with traditions.
TSCA’s unique prospective focus. The fragmentation of the staff into
small work groups accelerated the loss of TSCA’s overriding goal.
Confusion among the upper level administrators further stifled the
development of TSCA as a prospective law.72

Most of the activity centered on completing an Inventory
regulation, but no one evaluated the unfolding of the entire Act. This
emphasis on the statutory deadline was crucial. The Inventory formed
the basis for all subsequent regulation, however, no one at any level of
E.P.A. left any record of policy considerations tying the Inventory to
TSCA’s larger purpose. Ignorance of possible options and resistance to
institutional change re-defined TSCA’s prospective status during the

73 A more reactive

administrative rulemaking process on the Inventory.
regulation emerged in the Inventory; the questions of implementing an
alternative concept remained unaddressed and unanswered. Staff members
expressed confusion over this issue but appeared unconcerned; the staff
felt that the administrative process gave than little chance to explore

and develop the prospective, comprehensive nature Of the Act.”

98

E.P.A. was delegated the regulatory authority to monitor the
chemical industry. Under the authority, the Agency assumed the stance
of informal rulemaking defined by section 4 of the APA.75 The APA
outlined the procedures expected within Administrative Law by an agency
such as E.P.A. Tradition within Administrative Law had evolved the
assigning of specialized regulations to a appropriate agency. Personnel
in E.P.A. represented the most acceptable range of technical skills of
any federal agency to regulate toxics in the environment. The
discussion in Chapter I explained the problems facing E.P.A.; the
inherent scientific debates offered little concrete theory to decision

makers.76

Toxics in the environment fueled a statutory response, but
the technical disciplines lacked evidence to draft or enforce
regulations. Congress mandated E.P.A. to act with only a tenuous data
base available. Previously, administrative process evolved the means to
confer broad powers on regulatory agencies. The mandates to regulatory
agencies required action and regulation often through expressed
timetables. Complex regulation, in turn, necessitated the availability
and applicability of reliable and extensive data. Insufficient data to
support conclusions exposed the regulatory agency to the increased
likelihood of litigation. The lack of a clear scientific link between a
chemical in the enviroment and environmental deterioration, especially
when balancing the environment against the economic impacts of
regulation, raised legal questions of "arbitrary and capricious"

rulemaking.77

The E.P.A. staff acknowledged charges of "arbitrary and capricious"

policy in the Inventory regulations; the Agency formulated regulations

99

under the threat of litigation by aggrieved parties. Although the
courts are only allowed to judge an individual case at the bar and not
make abstract Opinions, an interpretation of statutory or regulatory
language has the potential of setting policy. Administrative Law
originated as an alternative to the costly and slow case-by-case
approach of the courts; litigation evolved to establish a check on an
agency’s accountability. The same delays considered in rulemaking by
the court system were instituted in the administrative process. TSCA’s
regulation of the Inventory illustrated a fundamental weakness of
regulating environmental problems through Administrative Law. An
agency’s ability to regulate rested on the data base available;
information was the support for any rational policy decision. Possible
delays, uncertainty and confusion lessened E.P.A.’s flexibility in
formulating the Inventory. Incomplete information utilized by the
Agency sparked disputes with the various external interests.78 Lack Of
information and concerted external pressure forced E.P.A. to compromise
on key technical issues such as the definition of "by-product" and
"intermediate" rather than risk lengthy litigation.79 External groups
included industrial associations and environmental groups, who pressed
for desired changes in the regulation.

Information emerged as a critical factor in the Inventory
rulemaking as E.P.A. lacked any previous experience as an industrial
regulator. Economic issues found in the definitions of "small
manufacturer" and "small quantities for research" went beyond the
Agency's initial expertise. The Act required rulemaking to proceed
simultaneously with information collection. This locked E.P.A. into the

drafting of regulations without a grasp of thein economic concerns

100

TSCA was mandated to consider. Both the technical and economic issues
in the rulemaking suffered from a dearth of unambiguous data and
precedent.80 This information gap left the Agency vulnerable to court
intervention in the decision making. Judicial review forced possible
inherent delays which the staff was attempting to avoid, so compromises
were struck.81 Congress delegated responsibilities to E.P.A. to draft I
rules, but the confusion in its staff stalled the progress of the
Inventory regulations nearly two and one-half years beyond its
deadline.

The need for information expressed by the E.P.A. staff indicated
another weakness faced by regulators of environmental problems in
Administrative Law. Regulation required the acceptance of an external
group’s information and data, but E.P.A. lacked the time and available
expertise to completely understand the diverse chemical industry.82
Collection of such data had clear guidelines developed in the APA and
expanded in Home Box Office. The issue of ex parte communication rested
on the potential impact of unfair influencing the rulemaking. Judicial
review of such regulations would not receive the "full administrative
record" nor be able to adequately judge the exercise of an agency’s
discretion. Analysis of the procedures employed by the TSCA illustrated

83 E.P.A.’s rulemaking on the

the paucity of the public record.
Inventory conflicted with prescribed procedures in which "...the notice
required by the APA, or information subsequently supplied to the public,
must disclose in detail the thinking that has animated the form of the

Proposed rule and date upon which the rule is based."84

A more in-depth
analysis of the relationship of external interest groups and the

administrative process will be discussed in the next Chapter. The lack

101

of information and precedent left E.P.A. vulnerable to the political
pressure assembled by groups with more data. The evidence indicated
E.P.A.’s record-keeping was minimal and that ex parte commnication may
have been a determining factor.

Overall, the administrative process modified TSCA's prospective
nature and forced the Agency to act with unproven concepts. The very
structures it evolved to become the "fourth branch of government" proved

cumbersome, costly, and inflexible when regulating toxics in the

environment.

1.

10.

11.

12.
13.
14.
15.
16.
17.
18.
19.
20.

21.

102

REFERENCES

Report of Presidential Committee on Administrative Management 39
(1937).

Davis, Kenneth 0. Administrative 1.9;! and Government. West
Publishing Co., St. Paul, Minnesota, 1975, pg. 26-27.

Ibid., pg. 6.

United States v. Irwin, 8 S. Ct. 1033, 127 U.S. 125, 32 L. Ed.
99.

Davis, Op. cit., "Administrative Law...," pg. 6.

Green, J. Thomas, Remarks on "Environmental Decision Making,"
NATURAL RESOURCE LAWYER, 7, 2, Spring 1974, pg. 341.

Davis Op. cit, "Administrative Law...," pg. 6.
Id.
U.S. Constitution, Art III 2.

Gellehorn, Ernest, Administrative Law and Prpcess in a Nutshell,
West Publishing Co., St. Paul, Minnesota, 1972, pg. 248.

Black, Henry C. Black’s Law Dictionary , Revised Fourth Edition,
West Publishing, St. Paul Minnesota, pg. 271.

Davis, op. cit, "Administrative Law...," pg. 11.

Ibid., pg. 9.

Ibid., pg. 26-27.

Id.

Ibid., pg. 11.

Ibid., pg. 23.

Ibid., pg. 16.

Ibid., pg. 9.

Id.

Goodnow, Frank J. Comparative Administrative Law, G.P. Putman &
Sons Publishing Co., New York, New York (1893), 302 pp. and

Principles of the Administrative Law in the United States,
Knickerbocker Press, New York, New York, (1903), 463 pp.

22.
23.
24.
25.
26.
27.

28.

29.
30.
31.
32.
33.
34.

35.

36.

37.
38.

39.

40.
41.
42.
43.

44.

103

Davis, op. cit., "Administrative Law...," pg. 12.

29 U.S.C. 150.

Davis, op. cit., "Administrative Law...," pg. 16.

Davis, op. cit., "Administrative Law...," pg. 34-36.

Kilbourn v. Thompson, 103, U.S. 168, 191, 26 L. Ed. 377 (1881).
Davis, Op. cit., "Administrative Law...," pg. 27.

United States v. Sh'revpport Grain_ and Elevator Co. , 287 U.S. 77,
85, 53 S. Ct. 42, 44, 77 L. Ed. 175 (1932).

Davis, op. cit., "Administrative Law...," pg. 25.

Ibid., pg. 9.

Ibid., pg. 6.

Ibid., pg. 17.

Humphrys Executor V. United States, 295 U.S. 602 (1935).

Ibid., 55 S. Ct. 861, 874, 79 L. Ed. 161 (1935).

Sypshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 6 S. Ct.
907, 842 L. Ed. 1263 (1940) and RFC v. Bonhers Trust Co., 318 U.S.
163, 63 S. Ct. 515, 87 L. Ed. 680 (1943).

FTC v. Ruberoid Co., 343 U.S. 470, 487-488, 72 S. Ct. 800, 810, 96
L. Ed. 1080 (1952) (Dissenting Opinion).

 

Davis, op. cit., "Administrative Law..., pg. 16.

Ibid., pg. 12-13.

60 Stat. 237 (1946) as amended by 80 Stat. 378 (1966) as amended
by 81 Stat. 54 (1967) and 88 Stat. 1561 (1974), 5 U.S.C. 551-59,
701-6, 3105, 3344, 6362, 7562.

52, 5 U.S.C. 551 (a) ’

54, 5 U.S.C. 555.

Davis, op. cit., "Administrative Law...," pg. 13.

510, 5 U.S.C. 706 (e).

Davis, op. cit., "Administrative Law...," pg. 32.

45.

46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.

60.

61.
62.

63.

64.

65.

66.

67.

104

Davis, Kenneth C., "Revising the Administrative Procedures Act,"
ADMINISTRATIVE LAW REVIEW, 29, 1 (Winter 1977), pg. 46.

Supra no 390
5 U.S.C. 552 (1966).
Davis, op. cit., "Administrative Law...," pg. 8.

Home Box Office Inc. UFCC, 567 F.2d 9 (D.C. Cir 1977).

 

Id., pg. 35.
Id., pg. 36.
Id.

Id., pg. 55.
Id., pg. 56.
Id.

Id., pg. 56.
Id., pg. 35.
Id., pg. 54.
Id.

Davis, Frederick, "Administrative Law: Today and Tomorrow"
JOURNAL OF PUBLIC LAW, 22, 3 (1973) pg. 352.

POLO 94-409, 2, 90 Stats 241 (Sept. 13, 1976).
DaViB, 020 Cite, "Rev181ng theses," p80 41.

Gori, Gio B. , "The Regulation of Carcinogenic Hazards," SCIENCE,
28 (April 1980), pg. 2-56.

Roberts, Marc J., "An Evolutionary and Institutional View of the
Behavior of Public and Private Companies" AMERICAN ECONOMIC
ASSOCIATION, 65, 2 (May 1971, pg 415).

See text accompanying notes 3-31 supra, Chapter I: INTRODUCTION.

See text accompanying notes 22-30 supra, Chapter II: A CASE STUDY
OF TSCA.

'National Research Council Report to the U.S. Environmental
Protection Agency entitled, "Decision Making in the Environmental
Protection Agency," National Academy of Sciences, Washington,
DOCO, 1977, p80 50

68.

69.

70.

71.

72.

73.
74.
75.
76.
77.

78.

79.

80.
81.
82.
83.

84.

105

Davis, Frederick, op. cit., "Administrative Law...," pg. 336.
Tohrman, Robert, "The Environmentalist Lawsuit: Traditional
Doctrines and Evolving Theories to Control Pollution," WAYNE LAW
REVIEW, 16 (1970), pg. 1085.

See text accompanying notes 168-169 supra, Chapter II: A CASE
STUDY OF TSCA.

Gladstone, Arthur A., "Commentary on The Adjudicative Process in
Administrative Law," ADMINISTRATIVE LAW REVIEW, 34, 2 (Spring
1979), pg. 240.

See text accompanying notes 22-25 supra, Chapter II: A CASE STUDY
OF TSCA.

Ibid., supra n. 168-174, Chapter II: A CASE STUDY OF TSCA.

Id.

See text accompanying n. 41, supra.

See text accompanying notes 3-22 supra, Chapter I, INTRODUCTION.
See text accompanying n. 41, supra.

The interaction between the Agency and interest groups will be
discussed in Chapter IV.

See text accompanying notes 48-89 supra, Chapter II, A CASE STUDY
OF TSCA.

Id., supra notes 90-111, Chapter II: A CASE STUDY OF TSCA.
Id.

Id., supra notes 170-174, Chapter II: A CASE STUDY OF TSCA.
Id.

See text accompanying n. 49, supra.

CHAPTER IV

INTEREST GROUPS IN THE ADMINISTRATIVE LAW PROCESS
Introduction

The Administrative Law process evolved into an institutional
structure, to meet the demands for another branch of government to
regulate human behavior. Congress and the courts intended this "fourth
branch of government" to promote active information exchange between a
regulatory agency and the various "publics." The Courts upheld and
strengthened the framework of interaction between an agency and
interested citizen groups. Clarification Of the accepted procedures
came in the recent Home Box Office case stating

these procedural requirements are intended to assist judicial

review as well as {0 provide fair treatment for persons

affected by a rule... To this end there must be an exchange

of views, information, and criticism between interested
parties and the agencies."

Rulemaking offered a forum for public involvement and agency scrutiny.3
Congress incorporated this concept into the APA, structuring the
participation of individuals or groups during the drafting Of a
regulation.4 Interested parties offered information and relevant
experiences pertaining to an issue being regulated. The institutional
structure of Administrative Law rested on the American ideal Of
"government by the people, for the peOple".

The concept emerged, in practice, to define the "people" or
"publics" as special interest groups. Political scientists described
these special interest groups as respresenting a pluralism. Pluralism
was the countervailing balance between interest groups assessing policy

Options in terms of perceived group benefits or costs.5 In theory these

106

107
groups were assumed to represent all the diverse groups within a
society. However, in practice, special interest groups produced a
partial pluralism where
not all citizens are represented in this process and some
citizens have representation-influence and power-substantially
in excess of others. Although this is oversimiplifying, the
citizens who gain effective representation in a partially
pluralistic system are those able to form effective political

and lobbypng organizations with other like minded
individuals.

These individuals organized around given specific issues appearing
within the regulatory process.

The effect of an organized group on the administrative process
resulted from a combination of many factors during a rulemaking. The
ban on ex parte communication in Home Box Office indicated the potential
effects of such "Off-the-record" contacts on decision makers. The lack
of a record further prevented consistent court review of agency actions.
Administrative Law evolved controls to mitigate an advantage held by an
organized or vocal minority. Court review, using legislation such as
the APA and previous court decisions, served as a check on agency
action. These judicial and legislative controls constrained the
organized interest groups through this codification of procedures; but
these groups were and still are Often a concerted force in rulemaking.7
A study Of a specific regulation in the Administrative Law process
should consider the impact of such external groups on a regulating
agency. The interaction of E.P.A. with external groups during the
Inventory rulemaking is discussed in this Chapter. The dialogue between
the Agency and the interest groups represents an example Of the response
to rulemaking among diverse groups and interests. One author

characterized this interplay (albeit dramatically) as:

108

Government is omnipresent--regulating, subsidizing,
allocating--and it is highly susceptible to manipulation by
well-organized groups (which are not necessarily big-business
groups). It is in the nature of democratic (and perhaps of
any) government that a numerous, durable, articulate, and
focused interest group, able to organize financial and field
support of political campaigners, to propagandize, to draft
and shepherd bills through legislatures, to maintain
continuous contact with regulatory officials, and to mobilize
voters, will wrest privileges and benefits from government and
thwart efforts to control its behavior. Consumers, citizens,
taxpayers constitute too diffuse and amorphous a group to
compete in this league...The very democratic structure that we
so highly - and rightly - prize facilitates the plundering of
taxpayers and consumers by interest grpups able to use the
powers of government for their own ends.

Institutional Considerations

A study Of any policy issue must take into consideration the
institutions involved; Administrative Law is no exception.9 The legal
framework developed by legislative and judicial action evolved, in turn,
with additional inputs from the regulated industries. Regulatory
agencies received expanded power based the precedent of the ICC’s
mandate to regulate the railroad industry.10 The ICC was the first Of
many regulatory agencies controlling industrial actions. Congress
diverted the control Of whole or partial components of different
industries to specific regulatory agencies. Regulation constitutes a
major factor in the present market structure accepted in the United
States.

Administrative Law was an example of a societal institution
intended to coerce individual behavior.11 The ultimate scarcity of a
finite world limits the range of choices available to individuals

seeking resources. Resources were and still are restricted by their

physical supply and the range of opportunities available for their use

109
which are held by individuals.12 Scarcity ofresources promotes human
interdependence. Therefore, institutions evolve as: "sets of ordered
relationships among peOple that define their rights, exposure to rights

0f others, privileges, and responsibilities."13

Society promotes the
growth of institutions as social mechanisms to allocate scarce resources
among individuals or groups. Institutions form the framework to guide
individual action in relation to other people and the limited resources
available. Institutions, in turn, structure property rights as: "...the
instrumentality by which any society controls and orders human
interdependence and resolves the question of who gets what."14

Whenever scarcity exists, the issue of allocation (who gets what)
arises. An institution assigns property rights to provide continuity

15 Property rights define the range of

and lessen conflict.
Opportunities available to the individual within a limited and
interconnected system. Possession Of a given property right gives an
individual the. power to impose certain costs on other people in the
interdependent situation. The costs are more than the cost Of simple
exclusion; such a right defines the potential actions delegated to those
involved.16 The physical limits in the individual or his/her
environment plus the institutional structure of available property
rights modifies the opportunity set available.17 Thus property rights
and their supporting institutions acknowledge both scarcity and human
interdependence. Mutual coercion channels social institutions as an
individual attempts to use his/her property rights to the exclusion of
another’s Opportunity for that right.18 Coercion does not imply

physical attack, rather it is manifested through interaction in the

various institutions assigning property rights. As institutions evolve,

110

property rights change to reflect accepted social standards and
practices. Society’s interdependencies establish a system of mutual
coercion found in the allocation of property rights.

Institutions develop a mutable set of property rights. Individuals
receive a modified opportunity set after each market transaction
occurs.19 Changes in either the institutional structure or its
allocation of property rights also transform the available Opportunity
sets. The scarcity of resources and the human interdependence
precipitate both the institution and its evolution over time.

Individuals do not possess the perfect knowledge to calculate the
constant, minute changes in their opportunity set. The power held by
individuals to coerce others depends on the range of property rights
designating sets.20 Institutional structure may require an outlay of
individual effort to effect changes in property rights and their
subsequent power to coerce. The cost to an individual may accrue in the
attempt of influencing institutional changes. These costs may have to
be weighed against perceived individual benefits.21 An attempt to
influence the allocation of property rights involves risks and
uncertainty for the individual actor. The interdependencies of human
behavior Spawns contractual costs on individual bargaining for a change
in the institutional structure.22 If an individual decides these
contractural costs required to compromise are too high then the status
pgpp.may be maintained.23 The evolution of property rights over time may
require the assumption of costs by the individual desiring the change.

Uncertainty forces the individual to accept risk. Uncertainty also
presents information costs to the individual who lacks perfect knowledge

on his/her optimal actions.24 An individual may have to bear the costs

111

of contracting through an institutional structure to attain change.
He/she is also responsible for the collection, simulation and
presentation of information to support the claim for alternative
institutional structure. The property rights structure determines which
individual may bear the costs of producing the necessary information and
the uncertainty of the final outcome}5 Property rights establishes a
basic status quo, which may force the costs of change upon those
desiring a more advantageous position.

Contractual costs, uncertainty costs, and information
responsibilities placed on individuals created the body of transactional
costs inherent in an attempt to modify an institutional structure.26
These costs are balanced against the possible gain in favorable
institutional (and therefore property rights) changes. An internal
calculus of the possible costs and benefits rely on the realization
that:

An individual’s impact on the process will depend upon, among

other things, the resources and information channels he

controls, his influence on others and on how much he tries to
influence each particular outcome.

The size of the personal investment required to influence an
established institution implies high transaction costs on the
individual. Individual desire for a re-allocation of property rights
consolidates diverse individuals among complementary interests. Group
action concentrates the pressure of selected information and diffused
costs among the individual members. A group or social movement is
defined as: "a primarily power oriented movement; a deliberate,
voluntary effort to organize individuals to act in concert to achieve

"28

group influence to make or block changes. A defined interest group

112

addresses the questions moderating an individual’s attempts to act for
institutional change or maintain the desired status quo. Individual
costs and uncertainty are still considered among group members but
weighed against the alternative of a more powerful voice. Acceptance of
the transaction costs inherent in organizing group activity indicates
that individual perceives an overall benefit from interest group
activities. This approach to institutional change achieves varying

amounts of individual support especially when: '...coordinated group

actions are thought to be the necessary means to obtaining some elements

in a larger social context the changes desired by participants."29

Costs attributed to the participation in a power movement may be
high when compared to immediate outcomes. Transaction costs diverted
individual time, energy, and resources into a group activity, but the
group activity offers no guarantees that the desired benefits will be
captured by the members.30 Structural solutions bear no guarantees,
as:

For the organization as a whole, the consequences of its

actions will turn in depend on the responses of various

external actors (competitors, buyers and regulatorg? and on
the nature of the organization relationship to them.

This expanded interaction exacts many of the same transaction costs of
contractural change facing individuals. Yet interest group activity
emerges as a voice modifying institutional structure.

Attempts to explain the emergence of interest groups expanded in
the literature. One concept relied on the occurrence of

...relative deprivation explicitly or implicity as a central
variable in the explanation of social movements, and thus to
explain the processes of social change that are engendered by
social movements. The basic notion is that feelings of
deprivation, of discontent over one’s situation, depend on
what one wants to have; that is, deprivation occurs in
relation to desired points of reference, often reggrence
groups" rather than in relation to how little one has.

113

Goals motivate an individual action because the individual assumed s/he
deserves this goal due to perceived personal investments. Such
expectations are blocked by an institutional structure and the coercion
of property rights. This blockage of expectations continues, forcing
the individual to join a similar reference group pushing for a desired
institutional change.33 An individual judges his/her own relative
deprivation and determines group pressure the most likely means to
influence institution change. An interest group provides a logical
route, bearing the diverse costs while providing an aggregate of
selected information and political pressure. The costs of uncertainty
inhibits individual action, so groups disperse this transaction cost
over its members. A group’s combined resources cushion the risk of
‘uncertainty to the involved individual. An interest group evolves over
time, responding to the changing institutional structure and available

'

information. It defines a goal of action when: '...satisfactory

solutions are sought to a series of "problems" as these are generated by

"34 The response of special interests

changing external circumstances.
to perceived changes in circumstances may provide crucial input into the

institutional allocation of property rights over time.

The Importance of Interest Groups in the Administrative Process

In response to the pressures of external interest groups,
Administrative Law evolved into an established institution, exercising
extensive power over property rights held by affected individuals.
Regulatory agencies served as the enforcement arm of the institution.
The passage of any new statute constituted a potential institutional and

property rights shift from the statusAuo. Subsequent rulemaking and

114

enforcement by the responsible agency defined the term "in the public
interest." There were and remain many "publics" desiring an expanded
set of property rights.35

Various interest groups calculated their specific information costs
and other administrative burdens prior to organization and action. A
regulating agency and other governmental units also calculated their own
costs inherent with a change in policy.36 A change in any institution
was not an isolated event, this change could not ignore the procedures
and powers held by the other governmental units. Vested interests
included the impacted "publics," organized interest groups, the overall
institutional structure and the regulating agency.

Congress delegated the power to change individual opportunity sets
through property rights to a regulatory agency. The regulatory agency
malso incurs the transactional costs affecting any interest group with a
stake in institutional change. The most crucial factor contributing to
an agency’s uncertainty is the information costs imposed during
rulemaking. An agency faces high information costs as:

The fact is, of course, that in a highly industrialized

society, the basic problem is precisely to obtain information

initially available only outside the decision making unit
itself, and that this is the background for the complicated

problems of coordination wit§7the "outside world, i.e. with
other decision making units.

Often industry is the main source of the external information
required by a regulating agency. The control over industrial activities
by an agency has become a major responsibility since the original

foundation of the ICC.38

An industry attempting rational business
practices often possesses a stable information base. Information
generally comes from the organized industrial sector; agencies receive

far less relevant data from other groups; for example:

115
It has been claimed that, because of limited resources,
citizen groups often have an incentive to participate in cases
that they feel reasonably certain they can win, or that will

generate significant publicity, rather thga in those that may
have major environmental or social impact.

The transaction costs imposed by the interaction of involved actors
affects groups both internal and external. to the Administrative Law
structure. All act to minimize uncertainty and information costs while

establishing a property rights base.

The Effect of Interest Groups on TSCA

E.P.A. presented an example of the dynamic interaction between
various interest groups and the institution of Administrative Law. The
Agency formulated its Inventory rules often with little data, facing
concerted external group pressure and internal uncertainty.40
Environmental policy substantially modified the property rights
structure held prior to the passage of a statute. Subsequent industrial
or general public controls represented a substantial shift of the

coercion found in property rights. Interest groups negotiated to

acquire or maintain the institutional status quo. The most

 

controversial drew the most pressure as:

The decisions made by E.P.A. under its statutory authority are
seldom simple resolutions of factual disputes; instead they
involve complex technical issues and controversial value
judgementsaihat can affect significant numbers of persons and
activities.

The "value judgments" were a result of the incomplete data base
possessed by the Agency. These contractural costs on EPA operated in
favor of the group providing data and expertise to the staff. Overall

...participation by the general public and organized citizen

groups, though substantial, has been far less extensive than

that of industry in part because public participants have
smaller resources.

116

Resources included the lack of highly trained technical staff, money and
access to a fragmented data base.

The reliance on industry-generated information was the general
pattern for E.P.A. Industry data represented the least expensive means
to acquire large banks of data for regulation. The Agency judged the
saving of staff time and expertise so that "...it is inevitable and
essential that E.P.A. continue to rely on industry for important

scientific and technical information."43

The cost of acquiring
information combined with the perceived administrativeproblems
convinced E.P.A. to accept industry data. Industry possessed the most
complete and available data set. The Agency felt the industrial data to
be most practical and inexpensive option. Evaluation of such data,

however, was not possible as: '...there are no simple protocols or

uniform measures of technical feasibility with which to generate and

"44 E.P.A. accepted most of the

evaluate industry information.
industrial data to be accurate, unless obvious errors appeared in the
submissions.

TSCA followed this pattern by abandoning an adversarial position

45 Staff members voiced concern over the

against the chemical industry.
general validity of such selected information. There was no public
record from the staff indicating the discovery of false data or
unis-information.“ No conclusion on this issue emerged, due to the
little evidence to support allegations that the industry was dishonest
or not acting in good faith.47

The public record shows that the industry offered the bulk of the

usable data, including the economic feasibility studies of the proposed

117

Inventory regulations. E.P.A. kept little documentation of the internal
deliberation and information used during the decision making. Poor
record-keeping provided limited insight on the alternatives weighed by
the staff. The power of information elevated the position of industry
into a cooperational stance (through the sharing of information) with
the regulating agency.48 An incomplete record prompted questions of the
possibility of ex parte communication and influence. No evidence
indicated E.P.A. had a restricted public forum or acted beyond the scope
of the law.“9 The inexperienced staff and lack of an available data
base fostered such a fraternal relationship between the Agency and the
regulated industry.

Environmental groups, on the other hand, lacked the information
desired by the Agency. These groups exerted the most influence through
media campaigns and threats of litigation. The influence manifested
itself in the Agency’s attempts to adhere to informal rulemaking
procedures and deadlines. Rulemaking on the Inventory typified an
Agency pattern when:

In general, the statutory imposition by E.P.A., combined with

the enforcement of such deadlines through litigation by

citizen groups, has been beneficial in allowingsfind forcing
E.P.A. to implement its program responsibilities.

The environmental groups used established institutional procedures to
force E.P.A. to act; however, it could not compete with the substantial
information advantage held by the industry.

TSCA was an example of the interconnections and difficulties
intrinsic to policy formation in the administrative process. The amount
of influence exerted specific interest groups was extensive but poorly

documented. E.P.A. plodded through "...an almost overwhelming

118

complexity that arises from an implementation effort involving many

"51 Administrative Law

actors at different levels of government.
encouraged such input and thereby allowed political pressure on a
regulating agency. The philosophical structure which shapes such
political institutions will be further defined in Chapter V. It raises

doubts that current Administrative Law can process such complex

environmental laws as TSCA.

1.

2.

10.

11.

12.

13.
14.

15.

16.

1‘7 .

18.

119

REFERENCES
Home Box OfficeL Inc. v. F.C.C., 567 F.2d 35 (D.C. Cir. 1977).
Id.
Id., pg. 36.

Administrative Procedures Act, 5 USC 553 (1970), see id. 553
(a).

Haveman, Robert 3., "Policy Analysis and the Congress: An
Economist’s View," POLICY ANALYSIS, 2, 2, (Spring 1976), pg.
235-50.

Ibid., p8. 2390

See text accompanying note 21 supra, Chapter II: A CASE STUDY OF
TSCA.

Posner, Richard A., "Power in America," THE PUBLIC INTEREST, 25,
(Fall 1971); pg. 119-121.

Tohrmann, Robert R., "The Environmental Lawsuit: Traditional
Doctrines and Evolving Theories to Control Pollution," WAYNE LAW
REVIEW, 16 (1970): pg. 1085.

Davis, Kenneth C. Administrative Law and Government. West
Publishing Co., St. Paul, Minnesota (1975); pg. 9.

Samuels, Warren J. "Welfare Economics, Power and Property,"
Perspectives of Property. Edited by Gene Wunderlich and W.L.
Gibson, Jr., University Park: Institute for Research on Land and
Water Resources, Pennsylvania State University (1972) pg. 63-67.

Schmid, A. Allen. ProLerty, Powejr and Public Choice. Praeger
Publishers, New York, New York (1978) pg. 4-7.

Ibid., p80 50

Schmid, op. cit., "Property, Power...," pg. 5.

Seidman, Robert 3., "Contract Law, the Free Market, and State
Intervention: A Jurispudence Review," JOURNAL OF ECONOMIC ISSUES,
7, 4 (December 1973), pg. 556.

Schmid, op. cit., Property Power..., pg. 6.

Ely, Richard '1‘., Propergz and Contract, MacMillan, New York, New
York, (1914) pg. 108.

Schmid, op. cit., "Property Power...," pg. 8.

19.
20.
21.
22.
23.
24.
25.
26.

27.

28.

29.
30.
31.
32.
33.
34.
35.

36.

37.

38.

39.

120

Ibid., pg 7.

Ibid., pg. 9.

Ibid., pg. 95.

Ibid., pg. 120.

Ibid., pg. 121.

Ibid., pg. 106.

Ibid., pg. 10.

Ibid., pg. 88.

Roberts, Marc J., "An Evolutionary and Institutional View of the
Behavior of Public and Private Companies," AMERICAN ECONOMIC
ASSOCIATION, 65, 2 (May 1971) pg. 415.

Morrison, Denton, "Some Notes Toward Theory on Relative
Deprivation, Social Movements, and Social Change," AMERICAN
BEHAVIORAL SCIENTIST (May/June 1971). PS. 676.

Ibid., pg. 677.

Ibid., pg. 686.

Roberts, op. cit., "An Evolutionary...," pg. 416.
Morrison, op. cit., "Some Notes...," pg. 675.
Ibid., pg. 678.

Roberts, op. cit., "An Evolutionary...," pg. 415.
Schmid, op. cit., "Property, Power,...," pg. 32.

Solo, Robert A. Economic nggpizations and Social 8 stems.
Bobbdeerrill Co., Indianapolis, Indiana, (1967):-p§:_78TJL_—__—-
Lindbeck, Assar, Rejoinder on, "The Political Economy of the New

Left--An Outsider's View," QUARTERLY JOURNAL OF ECONOMICS,
(November 1972), pg. 677.

 

 

See text accompanying n. 10, supra.

National Research Council report to the U.S. Environmental
iProtection Agency entitled, "Decision Making in the Environmental
Protection Agency," Volume II, National Academy of Sciences,
washington, D.C., 1977, pg. 99. -

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

121

See text accompanying notes 168-174 supra, Chapter II: THE CASE
STUDY OF TSCA.

National Research Council, op. cit., "Decision Making...," pg. 5.
Ibid., pg. 97.
Ibid., pg. 53.
Ibid., pg. 57.

See text accompanying notes 168-174 supra, Chapter II: A CASE
STUDY OF TSCA.

Id.
Id.

See text accompanying notes 173-174, Chapter II: A CASE STUDY OF
TSCA.

Id.

National Research Council, op. cit., "Decision Making...,
69.

138°

William, Walter, "Implementation Analysis and Assessment," POLICY
ANALYSIS, (Summer 1975), pg. 531.

CHAPTER V

A CONSIDERATION OF THE PHILOSOPHICAL FRAMEWORK
Introduction

Toxics in the human environment present philosophical as well as
scientific and political dilemmas. Earlier chapters in this study
focused on the scientific and political problems faced by the regulating
agency, E.P.A. This chapter will attempt to link the process described
in Chapters II, III, and IV with an area of philosophy deserving future
study.

Scientific evidence, discussed in Chapter I, indicated that toxics
persist and threaten human health over the span of generations.1 The
philosophical dilemma arises from the question of what, if any,
obligations are owed to future generations when regulating toxics in the
environment. The fact that data indicate long-range negative effects
from such toxics suggest a present responsibility to mitigate the toxics
threat to humans and to the environment. The power to change human
behavior (25;, through governmental regulation) allows a society to
meet this responsibility. There is an obligation to protect human
health once a toxic threat becomes known. Thus, the scientific evidence
and institutional concerns for future generations raise the issue 0f
obligations over time.

TSCA acknowledges these temporal concerns as the first prospective
environmental legislation, in the United States.2 That legislation like
most,exemplified the Utilitarian nature of American government.3 The
philosophy of Utilitarianism recently has come under fire for several

reasons, including its limitations in addressing obligations to

122

123

future generations.4 This chapter will review the ideas of several
leading theorists in order better to define Utilitarianism and offer two
alternatives to the Utilitarian position on the responsibility to future
generations. The Utilitarian philosopher selected is J.J.C. Smart.5
Chosen to reflect the non-Utilitarian side are Joel Feinberg6 and Ernest
Partridge.7 This comparison will identify the underlying social
philosophy of American government and suggest possible alternatives.
The specific example of toxics control will illustrate the philosophical
dilemma of extending obligations beyond the present generations under
the prevailing utilitarian social philosophy.

Philosopher John Rawls has judged the Utilitarian framework
inadequate for anumber of complex social issues including obligations to
future generations.8 Utilitarianism claims that the right thing to do
in any situation is whatever will maximize the greatest general good or
welfare.9 Rawls questioned the adequacy of utilitarianism in dealing
with questions of social justice, both within and between

generations.10

J.J.C. Smart has defended Utilitarianism from the criticism raised
by Rawls. Smart’s sophisticated, comprehensive definition of it is
presented below. The earlier chapters on the implementations of the
Inventory exemplify the efforts to put Smart’s Utilitarian framework

into‘practice.

Utilitarianism in Theory
It has been said that social policy and legislation in of the
United States rests on a Utilitarian framework.11 How functional is

this framework in practice?

124

Utilitarianism, as a framework, originally evolved as a reform of
an existing governmental structure. Jeremy Bentham and John Stuart Mill
were instrumental in developing this moral theory as a basis for social
reform. Indeed, Bentham’s framework of Utilitarianism "was developed
largely in order to provide a justificatory framework for

legislation.12 Mill claimed that the Utilitarian framework provided a

moral theory for both individual and institutional action.13 The
heritage of these two philosophers "has been a profoundly influential
one, and the liberal tradition in Anglo-American law has reflected ever
since the basic view that the maximization of social welfare is the
prOper object of legislative activity."14 There has been, however, as
seen in the case study of TSCA, a gap between theory and application.
Smart describes the theory of Utilitarianism as the "view that the
tightness or wrongness of an action is to be judged by the consequences,
good or bad, of the action itself."15 An action is assessed in terms of
"the total goodness or badness of its consequences, _i_._e_;_, on the effect
of the action on the welfare of all human beings or perhaps all sentient
beings."16 Individual choices combine in Utilitarism to promote a
general aggregate welfare for a society. Each action by an individual
affects the general welfare. Economists define this interaction in
terms of the interdependencies of individuals.17 Any action by an
individual affects the scarcity of a desired resource, therefore
modifying the options held by other individuals in their opportunity
sets.18 Utilitarianism accepts these human, societal interdependencies,
and the philosophy attempts consider these individual actions to promote

a general welfare and rational system of ethics.19

125

Smart builds his theory of Utilitarianism on Bentham’s concept of
the maximization of individual or aggregate happiness. Smart assumes
that this maximization should form the basis for identifying commendable
actions in a Utilitarian society.20 Smart defines aggregate social
welfare as encompassing the concept of average social welfare.21
Overall, good actions out weigh the bad actions throughout a Utilitarian
Society.

Whether a society based on Utilitarianism values the maximization
of pleasure or the minimization of suffering, a way to evaluate actions
exists. Certain actions are commended and others condemned as they
either contribute to or detract from the overall social good.
Utilitarianism, through the various assessments of good and bad, imposes

an imperative on all individuals to choose actions maximizing the

perceived overall benefit to society.22

Smart supports this concept of individual evaluation with the
assumption of generalized benevolence and disinterested impartiality
among individuals.23 Generalized benevolence is defined as "the
disposition to seek happiness, or at any rate, in some sense or another,
good consequences for all mankind or perhaps all sentient beings."24
Individuals, on the average, desire that their actions benefit not only
themselves but others. Smart adds that because most individuals
"...have a favorable attitude to the general happiness, surely they will
have a tendency to submit to an ultimate moral issue which does no more
than express this attitude."25

Therefore, Utilitarianism is the social philosophy of rational

choice. Individuals promote their own happiness and add to the

aggregate happiness.26 The agent or individual deliberates among the

126

available alternatives, then chooses the option providing the greatest

27 The term "rational" is

overall "satisfaction of desires" or utility.
a commendation for any individual action that is likely, based on the
available information, to produce the best results for both the

individual and society.28
Smart and other Utilitarians have few doubts that Utilitarianism

can apply to large social problems as well as the problems involving a
few identifiable individuals. Any differences, they would contend, are
simply matters of degree and complexity.29

However, as suggested in the Inventory example discussed in Chapter
II, the actual result of using Utilitarian theory to calculate social
welfare may not follow ideal lines. A gap between the sophisticated
theory and a constrained, real-world example, such as the legislation
regarding toxic threats, illustrates the problem of implementing

Utilitarian theory in the framework of complex procedures of governmental

regulation.

The Gap Between Utilitarian in Principle and in Practice

A gap exists between ideal Utilitarian theory and actual attempts
by decision makers to use the theory in government. Individuals may
diverge from the ideal structure of the theory when applying it in the
context of corporate-governmental constraints. A review of Chapter II
offers an example of the problems that resulted from E.P.A.'s attempts
to draft regulation based on the conceptual framework mandated by
Congress.30 TSCA serves as an example of the well-intentioned
Utilitarian ideal (in the form of the Act) and the way in which the

actual development of realistic regulation diverged from that ideal.

127

Utilitarianism aims at maximizing overall welfare or the
satisfaction of desires. Rawls characterized this concept in the

"...one reaches the Principle of utility in a natural

following manner:
way; a society is properly arranged when its institutions maximize the
net balance of satisfaction. The principle of choice for an association
of men is interpreted as an extension of the principle of choice for one

n. ..31

ms This aggregation of individual choice rests on the singular

principle of utility. It was this combination of individual desires
into a collective good that stimulated Congress to pass TSCA.32
Congress intended TSCA to address the comprehensive problem of toxics in
the environment. TSCA was to be a vehicle to promote social utility.
Utilitarian theory does not exclude the unborn from the calculation
of aggregate social welfare.33 This concept lent support to the passage
of prospective laws that explicitly plan for the distant future. TSCA,
for example, gave E.P.A. a mandate to exercise long-range planning power
in order to better protect present and future individuals from toxics
exposure.“ Pressure from an alarmed scientific community and general
public had sprung from increased information about a persistent toxics
threat. This pressure had prompted Congress to pass an enabling act for
regulatory action by E.P.A. The Agency received a mandate in TSCA to
regulate toxics with the first prospective environmental law. Congress
considered the present and future generations through the intent of

TSCA.35

This intent represented the sophisticated ideal of
Utilitarianism advanced by philosophers, such as Smart. Both present
and future individuals were to be considered in the process of

regulating toxics.

128

In contrast, during the Inventory regulation, the attempts to
operationalize Utilitarian goals met various obstacles. These
constraints in the actual situation limited the regulatory action taken
by the Agency staff. The problem was that complex issues (such as the
regulation of toxics in commerce) were beyond the evaluation capability
of even the most sophisticated Utilitarian. Evaluation of the
alternatives within a complex problem and the choice of an action relied
on available information. The lack of information on which to base
individual choices was a crucial problem.36 Information proved to be a
constraint for the Agency, especially in attempts to meet statutorial
and judicial standards for rulemaking.37

In the'case of TSCA, an enormous burden was placed on E.P.A. to
collect and weigh information. The Utilitarian principle requires each
individual to maximize his/her utility. However, the knowledge needed
to make these individual decisions was, in the case of TSCA, not
available.38 Even should this information be obtainable by the
individual, how does s/he "validly calculate" the happiness that would
result from a given isolated action?39 This problem of an enormous
information burden prompted earlier criticism of Bentham's ideal
Utilitarianism. Philosopher Adam Sedgewick found this information
requirement to be a barrier to practical application of Utilitarianism.
He explained that "man has not foreknowledge to trace the consequences
of a single action of his own: and hence...utility...is, as a test of
right or wrong, unfitted to his understanding, and therefore worthless
in its application."40

TSCA was an example of an application of the Utilitarian theory to

a complex, uncertain problem. The available information was limited and

129

often held only by the regulated industry."1 Much of the information
necessary for a Utilitarian decision was simply not available to the
decision makers.

Another problem facing E.P.A. was the cost of obtaining
information. In principle, philosophers may have theorized the costs of
such information should be paid to better facilitate decisions for the
aggregate social welfare. Decision-making costs were expected to be
borne by the decision maker and considered with the available options
for action. Yet this requires the consideration of information that
imposes high costs on an individual agent attempting to decide a course
of action. In practice, the cost of necessary information may be
horrendously high. Should an individual decide that the overall process
is too costly, a less than ideal Utilitarian choice may result. Without
the information, a decision maker can not impartially choose among a
comprehensive list of alternatives. The decision may produce the best
Utilitarian decision because all Utilitarian calculations, in theory,
consider decision-making costs as well as the overall benefits.
However, the results may be that the lack of information about distant
future generations removes the unborn from the calculations.

The lack of information confused the Inventory staff when it
attempted to choose specific definitions and procedures during
rulemaking.42 The constraint of limited information narrowed the range
of options to be considered. If the information about alternatives was
sufficently constrained, then decision makers had little impetus to
alter the statusgquo. Again, the Inventory case study illustrated this

situation when E.P.A. attempted to establish the first prospective

130

environmental law without the support of precedents within the

Agency."3
Further complicating the role of information in practical decision

making was the requirement of the APA to mitigate the possibility of an
"arbitrary or capricious" Agency action.44 specific procedures were
established, requiring that the agency keep a complete record of all
information considered during rulemaking. The agency was required to
document how and why specific decisons were made. A court review of the
agency’s record was used to determine the information used by an agency.
A lack of information resulted in an incomplete record, with the agency
acting without a firm base of fact. This lack of information forced the
agency to act within a constrained view of present and future
consequences. This constrained view offered an example of the
difficulty a decision maker faces when attempting to act in established
political institutions.

Moreover, the decision maker in any actual instance is not the
sophisticated philosopher. The decision makers in the U.S. government
were given mandates presupposing the Utilitarian social theory but were
constrained from acting. The burden of information and its costs,
inherent in the Utilitarian philosophy, restricted the scope of the
actions of the corporate and government bureaucrats.

Some areas, such as environmental protection, expanded the
responsibilities of decision makers to provide for future generations.
This broadened obligation further complicated the collection of
information by a decision maker implementing the Utilitarian concepts
into practice. Detailed knowledge of the distant future, necessary for

the impartial observer of Utilitarian theory, simply might not be

131

available. Even if such information could be obtained, the high cost
would deter the decision maker. A Utilitarian theorist, with a strong
committment to the interests of distant future generations, might opt to
pay these transaction costs. However, in the bureaucratic structure of
government, individual decision makers do not make such costly
choices."5 The decision maker faces a collection of information and
decision costs that necessitate the assigning of priorities during
rulemaking. These priorities provide a practical limited review of a
less than comprehensive set of alternatives. Such limiting of options,
based on a fragmented data base, were found throughout E.P.A. process of
drafting the Inventory."6 The constraints of costs, time, and available
information determine the manner in which future generations will be
considered by governmental decision makers under Utilitariansim.
Regulatory agencies operate in a constrained world of short-run
pressures, scarce resources, and limited time. An agency is mandated by
Congress to act within given boundaries of a specific law. The agency
cannot exceed its legislative authority without risking intervention by
the courts.47 Congress sets the format for agency actions. TSCA
illustrates the power of an enabling act to structure subsequent agency

action through the inclusion of timetables."8

The Act defined crucial
terminology although Congress did leave some definition to E.P.A.
discretion. Information for the Inventory was further constrained by a
statutory deadline imposed by Congress. The time frame forced the
Agency to limit‘information gathering and concentrate on information
from the regulated industry."9 Limited information, limited staff time,

and budgetary constraints forced the staff to function as less than the

132

impartial, benevolent observer weighing adequate information for the

consideration of both present and future generations.50
Because E.P.A. faced numerous constraints, primarily of information
and time, it was vulnerable to the added political pressure of external

interest groups.51

The chemical industry used the value of the
information to form a cooperative relationship with its regulatory
agency.52 Environmental groups, lacking the valuable information held
by the industry, used procedural and legal coercion to pressure the
Agency.53 These pressures further constrained the decision makers
attempts to define a"satisfaction of desires" of the public in the
present and in the future. Aggregate social welfare, in theory,
considers both present and future generations, however, in practice,
such welfare was defined in terms of the most effective pressure
supplied by an interest group.

Future generations, of course, were not represented by any interest
group. E.P.A. faced vocal and concerted political pressure and selected
information from various interest groups. The fact that future
generations were not represented explained the staff’s hesistancy about
considering the prospective nature of an environmental law. Since
consideration of future generations would have imposed increased costs
on decision makers, and since the unborn offered no vocal opposition,
E.P.A. ignored this consideration. The Agency acted to lessen the
practical constraints of the political pressure and the information gap

by emphasizing specific statutory timetables and the compromises

possible between the interest groups.“
In summary, the theory of Utilitarianism offered sophisticated

answers to complex problems such as the control over toxics that is

133

found in TSCA. In practice, the theory presented E.P.A. with an
inadequate framework in the face of political pressure and limited
information. The Inventory rulemaking illustrates the gap between
theory and practice.55

While the theory of Utilitarianism addresses the consideration of
future generations, even Smart admitted the inability of a practitioner
to see far into the future. "The future..is dim, largely because of the
potentialities of technological advance are unknown to us."56 However
dim the future, intuitions remain that certain issues are not adequately
addressed in the Utilitarian framework. Among these issues is the
question of what obligations, if any, the present decision maker has to
the future individual. One must look for non-Utilitarian grounds for
the support of these intuitions. Utilitarianism, by itself, lacks the
information about future generation to put the theory into practice with
regard to distant future generations. The theory relies on one
principle, that of utility. Any philosophical theory considers utility
a rational consideration; however, utility’s supremacy of position in
Utilitarianism, if it is the support our intuitions about future
generations, places an enormous burden on the availability of cheap,
accessible information.57 This information is crucial for the
determination of the best choice among options to satisfy desires. In
the case of TSCA, the information simply was not available to the
decision makers. A constrained political system limited the
consideration of the aggregate social welfare to those individuals
present, vocal and in possession of information. Consideration of

future generations would have added information burdens to an already

constrained situation.

134

Hence the future generations issue in the prospective view of TSCA was
ignored by the E.P.A. staff.

Given current institutional constraints, does the example of TSCA
indicate that.the intuitions related to consideration of future
generations mat be forgotten?58 Sophisticated philosophers have begun
to offer alternatives to Utilitarianism, by addressing these intuitions
about future generations. T510 summaries of these non-Utilitarians will
follow. These summaries will suggest the expansion of a philosophical
framework to consider more than just utility and just present
generations.

Alternative Considerations of Future Generations
Joel Feinberg develops an application of the ”interest principle"

59 This ”interest

in ”The Rights of Animals and Unborn Generations.”
principle” allocates rights to those who have (or can have) an interest
in the outcome of an action. A right holder must have interests to be
represented and must be able to benefit individually from these
interest.6o Feinberg develops his example of the quality of the
environment as a short-run gift for one's immediate descendants and as a
fundamental right for individuals far into the future. The future
individuals are assumed by Feinburg to be essentially human beings of
the same nature as present individuals.61 Therefore, earlier
philosophic works that exclude these individuals are in error; the
future individual meets the qualifications of being a right holder and
therefore must be considered.62 Feinberg defines rights as follows:

”To have a right is to have a claim to something and against someone,

the recognition of which is called for by legal rules, in the case of

135

moral rights, by the principles of enlightened conscience."63

Conservation of the environment is needed because present individuals
have the power to modify the environment that will be left for the
unborn. Future individuals can not presently claim their right to a
livable environment; however, custodians or agents can be appointed to
protect their rights through legal means.“ Feinberg states that should
the assumption that future individuals will be human just as present
individuals are defined as human, then present individuals have the
knowledge and power to act.65 He considers the lack of such
consideration explainable in the following manner: "The real difficulty
is not that we doubt whether our descendants will ever be actual, but
rather that we don’t know who they will be. It is not their temporal
remoteness that troubles us so much as their indeterminancy--their
present facelessness and namelessness.66 The indeterminacy does not
remove the underlying assumption that such individuals will be human and
therefore hold rights. Feinberg argues that the problems of
environmental protection will affect the daily lives of individuals
(similar to present people) far into the future.67 The future
generations do possess rights and present individuals can impinge on
these rights by present action. Feinberg builds his argument on
non-Utilitarian grounds. He intends that the argument stimulate
discussion of the rights implied for future generations but heretofore
ignored on the grounds of their indeterminacy.

Ernest Partridge discusses the rights of future generations as a
response to the Utilitarian argument that "human beings are generally
incapable of caring for the remote future and thus are absolved of a

moral obligation to do so."68 Partridge argues for the future

136

individual’s rights in "Why Care About the Future."69 He cites the
example of parks, foundations, and other means by which present
individuals explicitly act upon the future.70 Such things enrich both
present and future society. Partridge argues that an isolated
individual or society, without explicit links to the future, is bankrupt
and alienated.71

An alienated individual lacks "self-transcendence," the concept
that one's ideas, projects and community continue beyond his/her
isolated lifetime. The concept of self-transcendence is introduced as a
bold claim that human nature requires social interaction in the present
and the future in ways the individual finds meaningful. This expression
of self-transcendence is "a consequence of the universal condition and
circumstances of individuals human development. A sense and expression
of self-transcendence is thus necessary for mental health."72 Partridge
proposes the process of identification with others as a justification of
his premise that "we owe it to ourselves to be duty-bound to posterity,
in a manner that genuinely focuses on future needs rather than out own.
By fulfilling our just duties to posterity, we may now earn and enjoy,

73 Self-fulfillment

in our self-fulfillment, the favors of posterity."
is enhanced by links to the future. An individual has the antithesis to
alienation in his/her investment and expansion of self into a surviving
institution.” The institution links the individual to the lives of
both present and future generations of the society. This individual
involvement in significant events connects the individual to the flow of
events. An isolated individual is a finite individual.75 Caring for

the future lessens the finiteness and isolation of the individual; these

conditions that are receiving more and more attention in modern

137

societies].6 Partridge calls for a more open consideration of the
future to ease the present individual’s alienation and to protect the
unborn from a short-sighted society with no value extending beyond an
individual’s death. This use of self-transcendence is a simple thing.
When men act for the sake of a future they will not live to
see, it is for the most part out of love for persons, places
and forms of activity, a cherishing of them, nothing more
grandiose...To love is, amongst other things, to care about
the future of what we love...This is obvious when we love our
wife, our children, our grandchildren but it is also true in

the case of our more impersonal heye of our institutions,
places and other forms of activity.

Therefore, the consideration of future generations is no novelty, nor is
it the valuing of faceless, unknown beings. Partridge argues that
present day individuals and their societies need this involvement with
the future to add meaning to their lives through the perpetuation of
institutions and descendants.78 Present generations lose their isolated
status when linked to future individuals with similar institutions and
communities. He also assumes that future individuals have rights in the
present situation. The benefit of considering the future may be felt,
not in hundreds of years, but in the immediate society.79 Thus
Partridge builds on Feinberg’s discussion of rights to link the present
individual with a not-so-indeterminant group of people living in the
future. Feinberg also attempts to posit future generations rights on
the premise that such individuals are human in the same fashion as are

present individuals.

Possible Future Research
These alternatives offered by Feinberg and Partridge illustrate the

beginning of non-Utilitarian thought in the consideration of complex

138

issues. The issue of future generations raises in tentative questions
about total reliance on the concept of utility. If one relies solely on
the Utilitarian framework, then one must have access to enormous amounts
of information and a concrete means of evaluating complex problems.
Since the future provides little information and great uncertainty,
Utilitarianism, in practice, has ignored future generations. Perhaps if
augumented with non-Utilitarian grounds for taking the interests of
distant future generations into account, Utilitarian principles may
better answer the intuitions considering the rights of the unborn.

Possible research into this area may concentrate on the development
of non-Utilitarian alternatives for action. Such research unst include
philosophers and. actual decision makers (£._e_._ government bureaucrats).
One of the problems with Utilitarian theory is the difficulty of putting
the principles into practice. The debate and confusion over basic
definitions of chemicals under TSCA offers one example.80 Such a
detailed, complex problem has rarely received the interdisciplinary
attention of actual decision makers and philosophers. Philosophical
theories are valuable frameworks; however, actual constraints may
require attention from various disciplines.

Beyond the gap between the principle and practice of
Utilitarianism, future research may open discussion into the intuitive
questions resulting from consideration (or lack of consideration) of
future generations. Actions in the area of environmental pollution
(_e_._g_._ toxics) pose threats to both present and future individuals. If
the moral theory of Utilitarianism cannot, in practice, consider this
evidence, then what becomes of the intuition that demands consideration

of future generations? It is possible that, if the present Utilitarian

139

framework continues, such intuition may be discarded as superstition.
Future research may study what this loss of intuition means to a
society. It also may further the discussion of alternatives for a

non-Utilitarian framework. Both paths deserve more intensive research

before one is chosen over the other.

1.
2.

3.

5.

6.

8.

10.
11.
12.
l3.
14.

15.

16.

17.

18.

140

REFERENCES

See text accompanying n. 8-12 supra, Chapter I: INTRODUCTION.

Ids, D. 32.34.

Gorovitz Samuel. "John Rawls: A Theory of Justice", Contemporary
Political Philosophers. edited by Anthony de Crespigny and
Kenneth Minogue, Harper and Row, Publishers, Inc., New York, New
York, (1975), pg. 273-274.

Rawls, John. A Theory of Justice. Belknap Press of Harvard
University Press, Cambridge Massachusetts, (1971) pg. 22-27 and
258-298.

Smart, J.J.C. and Bernard Williams. Utilitarigpism For and
Against, Cambridge University Press, Cambridge, (1973), pg.-

3-74.

Feinberg, Joel. "The Rights of Animals and Unborn Generations",
Responsibilities To Future Generations-Environmental Ethics.
edited by Ernest Partridge, Prometheus Books, Buffalo, New York,
Partridge, Ernest. "Why Care About the Future?" Responsibilities
Tb Future Generations-Environmental Ethics. edited by Ernest
Partridge, Prometheus Books, Buffalo, New York, (1980), pg.
203-220.

Rawls, op. cit., "A Theory...," pg. 22-27.

Conversation with Dr. Martin Benjamin.

Rawls, op. cit., "A Theory...," pg. 22-27.

Gorovitz, op. cit., "John Rawls...," pg. 274.

Id.

Id.

Id.

Smart,;LJ}C. and Bernard Williams, op. cit., "Utilitarianism
Forces," p80 90

Ibid., pg. 70

See text accompaning n. 11-23 supra, Chapter IV: INTEREST GROUPS
IN THE ADMINISTRATIVE LAW PROCESS.

Id.

19.

20.
21.
22.
23.
24.
25.
26.
27.
28.
29.

30.

31.

32.

33.

34.
35.
36.

37.
38.

39.

40.

141

Smart, JwJeCo and Bernard Williams, op. cit., "Utilitarianism
For...," pg. 7.

Ibid., pg. 25.
Ibid., pg. 27.
Ibid., pg. 42.
Ibid., pg. 7.
Ibid.

Ibid., pg. 31.
Ibid., pg. 7.
Ibid., pg. 31.
Ibid., pg. 47.
Ibid., pg. 64.

See text accompanying n. 1-17 supra, Chapter II: A CASE STUDY OF
TSCA.

Rawls, op. cit., "A Theory...," pg. 26-27.

See text accompanying n. 3-17 supra, Chapter II: A CASE STUDY OF
TSCA.

Smart,;LJ.C. and Bernard Williams, op. cit., "Utilitarianism
For...", pg. 63.

Id.
Id.

See text accompanying n. 47-167 supra, Chapter II: A CASE STUDY
OF TSCA.

Id.
See text accompanying n 2-18 supra, Chapter I: Introduction.

Donagan, Alan. The Theory of Moralitl. University of Chicago
Press, Chicago, Illinois, (1977), pg. 194-195.

Quoted by Mill from Adam Sedgwick. "Discourse on the Studies of
the University of Cambridge," LONDON REVIEW, (April 1835), pg.
64.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

52.

53.

54.

55.
56.
57.
58.
59.
60.
61.

62.

142

See text accompanying n. 47-167 supra, Chapter II: A CASE STUDY
OF TSCA. '

Id.

See text accompanying n. 47-167 supra, Chapter II: A CASE STUDY
OF TSCA.

See text accompanying n. 39-48 supra, Chapter’III: THE
ADMINISTRATIVE LAW PROCESS.

See text accompanying n. 22-25 supra, Chapter IV: INTEREST GROUPS
IN THE ADMINISTRATIVE PROCESS.

See text accompanying n. 47-167 supra, Chapter II: A CASE STUDY
OF TSCA.

See text accompanying n. 15-19 supra, Chapter III: THE
ADMINISTRATIVE LAW PROCESS.

15 U.S.C. 2607 (b)

See text accompanying n. 37-51 supra, Chapter II: A CASE STUDY OF
TSCA.

Rawls, op. cit.. "A Theory...," pg. 29.

See text accompanying n. 37-51 supra, Chapter IV: INTEREST GROUPS
IN THE ADMINISTRATIVE LAW PROCESS.

See text accompanying n. 173-174 supra, Chapter II: A CASE STUDY
OF TSCA.

Id.

See text accompanying n. 47-167 supra, Chapter II: A CASE STUDY
OF TSCA.

Id.

Smart, J.J.C. and Bernard Williams, op. cit., pg. 64.
Donagan, op.cit. "The Theory...," pg. 201.
Conversation with Dr. Lawrence Libby.

Supra n. 6.

Ibid., pg. 142-143.

Ibid., pg. 139.

Ibid., pg. 147.

63.
64.
65.
66.
67.

68.

69.
70.
71.
72.
73.
74.
75.
76.

77.

78.
79.

80.

143

Ibid., pg. 139.

Ibid., pg. 147.

Ibid., pg. 149.

Ibid., pg. 147-148.

Ibid., pg. 148.

Partridge, Ernest. "Why Care About the Future," Regponsibilities
To Future Generations—Environmental Ethics. edited by Ernest
Partridge, Prometheus Books, Buffalo, New York, (1980), pg. 203.
Ibid., pg. 203-220.

Ibid.

Ibid., pg. 210.

Ibid., pg. 206.

Ibid., pg. 218.

Ibid., pg. 212.

Ibid.

Ibid.

Passmore, John. Man's Responsibility For Nature. Scribner
Publishers, New York, New York, (1974), pg. 88-9.

Partridge, 0p. cit., "Why Care...," pg. 214.
Ibid., pg. 218.

See text accompanying n. 47-167, Chapter II: A CASE STUDY OF
TSCA.

Chapter VI

SUMMARY, CONCLUSIONS, LIMITATIONS AND RECOMMENDATIONS

Summapy

This study reviewed the administrative process during a specific
rulemaking. The Inventory regulations of Toxic Substances Control Act
were studied for their importance to the Act and for more generalizable
observations on their relationship to the established environmental law.
TSCA provided an example of the new generation of environmental laws,
integrating a prospective, long-range plan with a reactive,
problem-solving framework within E.P.A. The prospective nature of TSCA
was a fundamental shift from the established tradition of environmental
regulation. TSCA’s new concept was evident throughout the
administrative process; however, implementation of this new format
complicated the Inventory rulemaking. The policy implementing the
Inventory was finalized three years after its mandated deadline. Such a
delay indicated problems, proceeding from the governing institution.
These problems were beyond the the scope of the actual regulations. At
the present time, E.P.A. has completed only two rulemaking processes, on
the Inventory section and TSCA’s specific ban on polychlorinated
biphenyls.

The Administrative Law evolved to satisfy the need for a
bureaucracy to administer regulations over specific human behavior.

Agencies bore specific responsibility for the systemization of broad

144

145

policy directives. E.P.A. emerged as the primary federal agency
responsible over environmental issues. TSCA delegated broad
responsibilities to E.P.A. for the drafting of specific regulations and
subsequent enforcement. One basic responsibility for E.P.A. was the
collection and analysis of the available data. This data formed the
information base for subsequent regulations. In the case of toxics, the
necessary information was very limited in scope and subject to
controversy among experts and the general population. Interest groups
augmented the flow of information during the administrative process of
the Inventory rulemaking. Over time, the institutional framework of
rulemaking has expanded to encourage such varied inputs by individuals
and groups affected. Ideally, this open forum facillitated information
exchange and discussion. Access into the institution of Administrative
Law, through the regulator agencies, imposed contractural and
information costs on all involved. Transaction costs encouraged
collective or group action; such groups attempted to influence the
process with select information and political pressure. TSCA
illustrated the methods by which interest groups influenced decision
makers during the administrative rulemaking on the Inventory.
Administrative Law evolved in a political and economic structure
emphasizing the reaction to immediate stimuli. Utilitarianism emerged
as a fundamental philosophy shaping American policy. A social calculus
became institutionalized into the present day balancing of perceived
benefits and costs. The principles of Utilitarianism, the consideration
of present and future utility, were embodied in such laws as TSCA. The
Act expanded E.P.A.’s authority beyond the traditional philosophy of

environmental policymaking. Long-range prospective planning was added,

146

reflecting new evidence that a toxic threat reached beyond its immediate
release far into the future. Intuitions, from the experts and general
public, supported this as a more explicit attempt to consider both
present and future generations. E.P.A.'s attempts to operationlize
these principles did not, in reality, implement a long-range plan.
Short-run constraints and political pressure shifted E.P.A.'s attention
away from the long-range plan to more immediate realities in the face of

a statutory deadline.

Conclusions

 

E.P.A.'s decisionmaking is not an example of the efficient
alternative theorized by Administrative Law for such complex problems as
environmental law. Difficulties result from the prospective nature of
the statute, which implies a fundamental shift in the philosophy of
E.P.A. The process of the Inventory rulemaking demonstrates the
procedures within E.P.A. which are often cumbersome and hesitant.

Such cumbersome and hesitant procedures were evident in E.P.A.'s
consideration of the Inventory. The regulations were finalized after
many delays, changes and attempts to answer pressure from selected
interest groups. Evaluation of E.P.A.'s record on its first attempt at
regulating the chemical industry is judged as piecemeal and timid. Will
such conclusions apply in the future to subsequent TSCA regulations
based on the Inventory? This confused and dilatory response raises
larger questions about the appropriateness of current Administrative Law
to regulate prospective environmental statutes in the face of limited

and controversial information.

147

The lack of necessary information crucial to the process of
rulemaking, raises doubts that a complex prospective environmental
statute could be administered with the present organizational structure
within E.P.A. Uncertainty and the lack of an information base stymies
Agency action. Criticism of Administrative Law as an alternative
institution, regulating environmental concerns can be summarized as:

Instead of a flexible and highly informed body of problem

solvers which can swiftly identify and authoritatively dispose

of all the frictions and disputes arising out of a highly

urbanized and industrial society (much as Equity allegedly

softened the hard "bite" of strict "Common Law")
administrative process has proved slow, expensive and

generally unresponsive to societal nefds, or as it is more
frequently put, to the public interest.

TSCA exhibits the weakness of the administrative process in the
face of uncertainty information costs, pressure from interest groups
and the need for long-range planning. The unique prospective format and
highly integrative, technical orientation of the statute represents a
new development in the traditional approach to environmental problems.
In conclusion, TSCA was (through its implementation by E.P.A.):

l. Lacking precedents for administrative action due to its

prospective format.

2. Slow in emerging from the administrative process because
institutional structure hampered E.P.A. action and
confused the responsible staff.

3. Subject to procedural delays and fears of costly, slow
judicidal proceedings.

4. Sensitive to concentrated'political pressure through the

exchange of selected information.

148

5. Acting to control a perceived threat with a incomplete
data base, making the entire regulation more vulnerable to
judicial review.

6. A promising approach to environmental control but lost
most of this promise when forced through a constrained,
bureaucratic system facing high information costs.

The process of Administrative Law proceeds in direct correlation with

the data base and expertise found in the responsible regulating agency.

Limitations

This study of TSCA centered on the rulemaking under section 8(b),
the Inventory. These regulations will define future rulemaking under
TSCA through established definitions and procedures. Predictions on the
future development of TSCA, however, are based on a limited review of
one crucial rulemaking. Although this study offers general insights
into the institutional structure of administrative procedures within
E.P.A., it is not the final review of TSCA or E.P.A. Subsequent
regulation under the Act will require attention and study. The single
case study of the Inventory, as. the only completed major rulemaking
under TSCA, acknowledges the slow progress of E.P.A. to fully implement
TSCA's other regulations. As a detailed analysis of an actual procedure
of compiling the Inventory, this study acknowledges the limited scope of
a review of only one (albeit basic) section of TSCA.

Review of any law, regulation or court decision is a snapshot in
time. Succeeding litigation, statutes, or Agency re-organizations could

result in modifications of the regulation or statute. Such events may

149

also change the institutional structure of the administrative process
within E.P.A. itself. The entire system is on an evolutionary path. It
is beyond the scope of this research to foretell the outcomes of future
court cases and similar actions within Environmental Law. This study is
an attempt to explain the existent system of administrative processes

and its impacts on a fundamental shift in the environmental law.

Recommendations

Follow-up studies on subsequent regulation under TSCA are needed.
The Act is a major effort to consolidate an information base while
regulating the entire chemical industry. Research into the scientific
controversies inherent in regulating toxics are a little explored area.
Other controversies deserving in-depth study include an overview of the
range of legal options to control toxics and alternative institutional
structures that might be feasible to regulate environmental concerns.
These alternative considerations included the philosophical dilemma of
the obligations, if any to future generations.

TSCA is the first prospective environmental law. Congress has also
passed the Resources Conservation and Recovery Act2 (hereafter RCRA) to
create a "cradle to grave" program for the managing of hazardous wastes.
E.P.A. is also responsible for RCRA which lags behind TSCA in the amount
of completed rulemaking. TSCA received first priority over RCRA in
E.P.A.; RCRA staff expected to learn from the lessons and'experience of
TSCA.3 These experiences of TSCA will be informative to the decision

makers as the regulations for RCRA are drafted. Environmental law may

150

be evolving a prospective framework in its administrative procedures
based on such progressive statutes as TSCA and RCRA. Future research on
both statutes will more fully define the current administrative process
within E.P.A. and the subsequent institutional effects of prospective
environmental laws.

A more immediate and practical concern rests in the insufficent
record kept by the TSCA staff. The lack of documented and dated entries
leaves many gaps in the open process of Administrative Law. E.P.A.
should strengthen staff recordkeeping to lessen the likelyhood of the
disruptive effects of litigation and court opinions. Such record
keeping is required by law and court opinion to promote accountable
agency action. It has been recommended previously that,

E.P3A. should ensure that on orderly system for access is

established to facilitate review...E.P.A. should establish a

systematic procedure for compiling documentary records and

should issue decision papers 30 explain fully its actions and
the rationale for its actions.

E.P.A. needs to revamp its own record keeping and internal information
system. This will minimize the likelihood of disruptive judicial
intervention.

A final recommendation centers on the research into alternative
structures to regulate environmental issues in the midst of scientific
controversy. Agencies are especially vulnerable to pressure from
interest groups when in the process of rulemaking and regulating in the
absence of an underlying data base to support policy. An earlier
discussion explained the use of court-held power to review agency
actions based on available information.5 The issue here goes beyond the
strict legal question on an individual rulemaking. Decision makers are

now forced by statutory timetables to regulate inputs to the

151

environment, with or without the necessary information. The information
costs to the agency may be extremely high due to the state of the
science and the difficulty of the consideration of effects over time.
TSCA represents a basic ethical problem through its balancing the
possible short and long-run harm to the environment (including human
health) against possible economic or societal disruption in the short
run. The gap between the principle and the practice deserves more
thought and research. This gap illustrates a moral problem underlying
the institution of Administrative Law and regulatory agencies. Without
adequate information or institutional structure, an agency often makes
sweeping decisions about the lives of present and future individuals ix:
near total ignorance, based on intuitions and implicit value judgements.
This is a crucial area for interdisciplinary study given the expansion
of the federal government’s role in such a complex and controversial

area as environmental protection.

1.

2.

3.

4.

152

REFERENCES

Davis, Frederick B., "Administrative Law: Today and Tomorrow,"
JOURNAL OF PUBLIC LAW, Volume 22, 1973, PG. 337-8

Po Le 94-580

E.P.A. staff interviews, supra, n. 2, Chapter II, A CASE STUDY OF
TSCA

The Report prepared by the National Research Council for the U.S.
Environmental Protection Agency, Volume II, National Academy of
Sciences, Washington, D.C., 1977, pg. 81

See discussions in notes 40-63, Chapter III, THE ADMINISTRATIVE
LAW PROCESS

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