Adding a hammer to TSCA’s tool belt: Clear deadlines and, yes, hammers to ensure they’re met, are essential to TSCA reform

Richard Denison, Ph.D., is a Senior Scientist.

For decades, the American chemical industry has produced and used chemicals virtually without condition, due to the laissez-faire approach embodied in TSCA.  The consequence?  Tens of thousands of chemicals are in everyday use with little health and environmental data, let alone evidence of their safety.  This has led to a crisis in confidence among commercial buyers, users and sellers of chemicals and products made using chemicals – not to mention consumers, state and local government and the general public.

Meaningful TSCA reform must address these problems, by not only systematically subjecting chemicals on the market to data requirements and safety determinations – but also ensuring all this is done in an efficient and timely manner.

That’s where hammers come in. 

Getting to where we need to be clearly will take some time, because of the large number of chemicals in commerce.  The only way any stakeholder will have any confidence in a reformed system is if it progresses in an effective, efficient and timely manner.  For this reason, TSCA reform legislation must include clear deadlines for data submissions and safety determinations.  The chemical industry appears to recognize this need:  The American Chemistry Council’s (ACC) third principle for TSCA modernizationassuming ACC has not changed its mind about this one as it has others of its principles — reads as follows (emphases added):

“3.  EPA should act expeditiously and efficiently in making safe use determinations.

Since a chemical may have a variety of uses, resulting in different exposure potentials, EPA should consider the various uses and focus on those resulting in the most significant exposures.

EPA should complete safe use determinations within set timeframes.”

History teaches us, however, that even where statutory deadlines are specified, EPA routinely misses those deadlines – unless there is an adverse consequence that falls on the regulated community.  Relevant examples include EPA’s failure to meet the statutory deadlines included in the Food Quality Protection Act of 1996 pertaining to reassessments of tolerances for food-use pesticides and to testing requirements under the Endocrine Disruptor Screening Program.

Deadlines are missed for a variety of reasons, most prominent among them that regulated entities have every incentive to seek to delay regulatory implementation and chemical-specific decisions, absent an adverse consequence to them.  This is because, in the absence of a decision, the default is to maintain the (un- or less-regulated) status quo.  The history of environmental regulation is replete with examples of how industry has routinely acted to defer or slow down regulations.  For any number of examples, see Ross and Amter, The Polluters; Oreskes and Conway, Merchants of Doubt; Michaels, Doubt is Their Product; and Markowitz and Rosner, Deceit and Denial.

But that history also shows the effectiveness of Congress’ inclusion of a so-called “hammer provision” within a law.  Under such a provision, Congress not only provides a deadline by which EPA is to regulate; it also specifies that, if EPA has failed to act by that deadline, a ‘hammer’ falls, imposing a consequence on the regulated community that is set forth in the law.  When hammers are included, EPA meets its deadlines, in no small part because the regulated community has an incentive to avoid the more onerous outcome that applies if the deadline is not met; see Shapiro, S.A and Glicksman, R.L., “Congress, the Supreme Court, and the Quiet Revolution in Administrative Law,” Duke Law Journal, November 1988, pp. 839-840.  Successful examples of federal legislative hammers include the land ban provisions of the 1984 amendments to the Resource Conservation and Recovery Act, and the hammer provisions of the Nutrition Labeling and Education Act.

Professor Robert L. Glicksman at the University of Kansas Law School explains the shift in incentives brought about by a hammer:

“The benefit of using hammer provisions to establish default rules in the absence of agency action is that they reverse the normal incentives of regulated entities (and agencies solicitous of their interests or otherwise hostile to the statutes they administer) to delay in issuing regulations. The threat of having to live with statutory default rules, particularly if they are onerous, can spur both the agency and regulated entities to move expeditiously to meet statutory deadlines.” (page 209)

A very mild version of a hammer is included in the House TSCA reform bill, H.R. 5820, the Toxic Chemicals Safety Act of 2010.  That provision (Section 6(b)(7)) merely disallows expansion in the production and use of a chemical for which EPA has missed the deadline for determining whether or not it is safe, and requires public notice that a safety determination is pending.  The restriction applies until the safety determination is completed.

Not heavy enough a hammer

The concern I have with this hammer provision is that it may not be onerous enough to be effective in ensuring the Agency meets its deadlines.  The ability of companies to continue to produce, use and sell a chemical at current levels for an indefinite period may well provide a substantial incentive for the companies to seek to delay EPA’s completion of a safety determination, especially if they fear EPA may ultimately restrict or impose conditions on that chemical.

In my view, a more appropriate and effective hammer would be one that automatically requires a reduction in the production and/or use of a chemical pending completion of its safety determination.  For example, a 25% reduction in production could be imposed in the first year after EPA misses a deadline, increasing in 25% increments in each subsequent year until a decision is reached.  Unlike the hammer provision of H.R. 5820, this approach would not allow business as usual under the status quo to continue indefinitely for chemicals the safety of which has not been demonstrated.

Industry opposition is short-sighted

Not surprisingly, the chemical industry is vociferously opposed to H.R. 5820’s lightweight hammer provision; see, for example, Mr. Cal Dooley’s statement at time 2:48:02 in the video of the July 2010 hearing on the bill.  He suggested that this provision would stifle innovation and harm U.S. chemical companies against their competition abroad.

That argument for opposing a provision intended and needed to ensure timely completions of safety determinations for chemicals in commerce ignores the fact that the industry’s own customers, more than anyone else, are demanding more and better information about the chemicals they buy, and more, not less, evidence of their safety.

It also ignores the fact that the rest of the world is moving ahead faster than we are to address chemical safety.  That includes even China, the chemical industry’s favorite whipping post when it seeks to sow fear about stifling innovation and losing out to foreign competitors.  Yet China bars domestic use of formaldehyde-laced plywood that until recently we allowed to be imported, has reportedly translated the European Union’s REACH Regulation into half a dozen dialects, and is modernizing its own laws along the lines of REACH.

Innovation toward safety

Any consideration of arguments about innovation and competitiveness needs to be viewed from this starting point:  All too often, a chemical’s safety has been at best a tangential consideration.  A major goal of TSCA reform should be to ensure that innovation toward safety is an integral part of how chemicals are produced and used in this country.

In my view, one of the most egregious failings of TSCA has been its failure to incentivize innovation toward safer chemicals and products.  Instead, it has perpetuated a chemicals industry that has little incentive either to replace existing chemicals – because they skate along without any scrutiny at all – or to ensure that new chemicals it does introduce are safe (or at least safer than the existing chemicals with which they will compete) – because the review they get is so cursory (data- and time-constrained) that only the most dangerous substances can be expected to be caught and stopped.

As I’ve noted in an earlier post, I support provisions in H.R. 5820 that would:

  • provide an easier path onto the market for new chemicals demonstrated by their makers to be inherently safe, or to be safer for their intended uses when compared to other chemicals used for the same purpose (see sections 35 and 39 of the Act); and
  • allow critical or essential use exemptions even for chemicals (whether new or existing) or new uses of chemicals that fail the safety standard, where they fulfill vital purposes for which alternatives do not exist, or where they can be shown to provide a net health or environmental benefit compared to the alternatives (see sections 5 and 6).

Both of those provisions encourage the development of innovative new chemicals that are either demonstrably safe, safer than the alternatives or meet an essential need.  But we simply must end the decades of ongoing uses of chemicals for which safety has not been demonstrated.  In this day and age, innovation without safety is not really innovation at all.  Safety ought to be at the core of innovation, rather than being seen as an impediment or afterthought.

Assuring that EPA makes effective and timely safety decisions for chemicals on the market is essential to achieving this goal, as well as to restoring public confidence in our nation’s primary chemical safety law – and its implementation.

And adding an effective hammer to the TSCA tool belt is essential to achieving those ends.

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