Some of these weaknesses were designed into the statute. The legislative history makes clear that Congress was intent on not compromising the international competitiveness of the U.S. chemical industry. Key features of the bill, including CBI protections and the lack of a required data set for new chemicals, represent an accommodation of concerns expressed by the chemical sector.

Other features were probably not anticipated by the sponsors. The powers of the agency under Section 6 were curbed by the Fifth Circuit Court of Appeals in the Corrosion Proof Fittings case. That ruling threw out EPA’s 1989 asbestos ban on the basis that the agency had presented insufficient evidence to justify the ban, had not used the least burdensome regulatory approach, and had not adequately balanced the benefits of the restriction against the costs to industry. The inability of the agency to prevail in connection with an acknowledged carcinogen, despite a ten-year, 100,000-page administrative record did not bode well for future chemical bans. Indeed, Section 6 lay essentially dormant for the next two decades.

The agency has in recent years worked around the limits of the statute to ramp up the pace of chemical testing. This has been accomplished through voluntary compacts with chemical companies and other stakeholders under programs such as the Voluntary Children’s Chemical Evaluation Program (VCCEP), the Chemical Assessment and Management Program (ChAMP), and the High Production Volume (HPV) Challenge Program. Taken together, these initiatives resulted in testing for about 1,300 chemicals.

EPA has also announced revised policies concerning CBI claims, particularly efforts by industry to keep the identity of chemicals confidential. The agency now intends to reject such claims for any chemicals whose submissions contain data indicating a "substantial risk" to human health or the environment.

And last year, Administrator Lisa Jackson announced a series of "chemical action plans" prioritizing substances for review under Section 6 and Section 5(b)(4). EPA contemplates a total of 12 action plans for various classes of chemicals by the end of 2010. The first round targets certain phthalates, short-chain chlorinated paraffins, polybrominated diphenyl ethers (PBDEs), and perfluorinated chemicals. The next chemicals slated for action include benzidine dyes and pigments, and bisphenol A. A number of the chemical classes under scrutiny are persistent and bioaccumulative, suggesting EPA will prioritize these concerns in a TSCA rewrite.

Jackson is emphatic, however, that the voluntary compacts and action plans are no substitute for a comprehensive rewrite of the statute. She recently told the Senate Environment Committee that "the current law . . . is outdated, and does not provide the tools to adequately protect human health and the environment as the American people expect, demand and deserve."