{"id":1007,"date":"2010-11-15T10:50:41","date_gmt":"2010-11-15T15:50:41","guid":{"rendered":"http:\/\/blogs.edf.org\/nanotechnology\/?p=1007"},"modified":"2024-02-12T11:01:06","modified_gmt":"2024-02-12T16:01:06","slug":"adding-a-hammer-to-tscas-tool-belt-clear-deadlines-and-yes-hammers-to-ensure-theyre-met-are-essential-to-tsca-reform","status":"publish","type":"post","link":"https:\/\/blogs.edf.org\/health\/2010\/11\/15\/adding-a-hammer-to-tscas-tool-belt-clear-deadlines-and-yes-hammers-to-ensure-theyre-met-are-essential-to-tsca-reform\/","title":{"rendered":"Adding a hammer to TSCA’s tool belt: Clear deadlines and, yes, hammers to ensure they\u2019re met, are essential to TSCA reform"},"content":{"rendered":"

Richard Denison, Ph.D.<\/em>, is a Senior Scientist.<\/em><\/p>\n

For decades, the American chemical industry has produced and used chemicals virtually without condition, due to the laissez-faire approach embodied in TSCA.\u00a0 The consequence?\u00a0 Tens of thousands of chemicals are in everyday use with little health and environmental data, let alone evidence of their safety.\u00a0 This has led to a crisis in confidence among commercial buyers, users and sellers of chemicals and products made using chemicals \u2013 not to mention consumers, state and local government and the general public.<\/p>\n

Meaningful TSCA reform must address these problems, by not only systematically subjecting chemicals on the market to data requirements and safety determinations \u2013 but also ensuring all this is done in an efficient and timely manner<\/em><\/strong>.<\/p>\n

That\u2019s where hammers come in.\u00a0 <\/p>\n

Getting to where we need to be clearly will take some time, because of the large number of chemicals in commerce.\u00a0 The only way any stakeholder will have any confidence in a reformed system is if it progresses in an effective, efficient and timely manner.\u00a0 For this reason, TSCA reform legislation must include clear deadlines for data submissions and safety determinations.\u00a0 The chemical industry appears to recognize this need:\u00a0 The American Chemistry Council\u2019s (ACC) third principle for TSCA modernization<\/a> \u2013 assuming ACC has not changed its mind about this one as it has others of its principles<\/a> — reads as follows (emphases added):<\/p>\n

“3.\u00a0 EPA should act expeditiously and efficiently<\/em> in making safe use determinations.<\/p>\n

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.<\/p>\n

EPA should complete safe use determinations within set timeframes<\/em>.”<\/p>\n

History teaches us, however, that even where statutory deadlines are specified, EPA routinely misses those deadlines \u2013 unless there is an adverse consequence that falls on the regulated community.\u00a0 Relevant examples include EPA’s failure to meet the statutory deadlines included in the Food Quality Protection Act of 1996<\/a> pertaining to reassessments of tolerances for food-use pesticides and to testing requirements under the Endocrine Disruptor Screening Program<\/a>.<\/p>\n

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.\u00a0 This is because, in the absence of a decision, the default is to maintain the (un- or less-regulated) status quo.\u00a0 The history of environmental regulation is replete with examples of how industry has routinely acted to defer or slow down regulations.\u00a0 For any number of examples, see Ross and Amter, The Polluters<\/em><\/a><\/span>; Oreskes and Conway, Merchants of Doubt<\/em><\/a>; Michaels, Doubt is Their Product<\/em><\/a>; and Markowitz and Rosner, Deceit and Denial<\/a><\/em>.<\/p>\n

But that history also shows the effectiveness of Congress’ inclusion of a so-called “hammer provision” within a law.\u00a0 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 \u2018hammer\u2019 falls, imposing a consequence on the regulated community that is set forth in the law.\u00a0 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<\/em>, November 1988, pp. 839-840.\u00a0 Successful examples of federal legislative hammers include the land ban provisions of the 1984 amendments to the Resource Conservation and Recovery Act<\/a>, and the hammer provisions of the Nutrition Labeling and Education Act<\/a>.<\/p>\n

Professor Robert L. Glicksman at the University of Kansas Law School explains<\/a> the shift in incentives brought about by a hammer:<\/p>\n

“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)<\/p>\n

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<\/em><\/a>.\u00a0 That provision (Section 6(b)(7)) merely disallows expansion<\/em> 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.\u00a0 The restriction applies until the safety determination is completed.<\/p>\n

Not heavy enough a hammer<\/strong><\/p>\n

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.\u00a0 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.<\/p>\n

In my view, a more appropriate and effective hammer would be one that automatically requires a reduction<\/em> in the production and\/or use of a chemical pending completion of its safety determination.\u00a0 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.\u00a0 Unlike the hammer provision of H.R. 5820, this approach would not allow business as usual under the status quo<\/em> to continue indefinitely for chemicals the safety of which has not been demonstrated.<\/p>\n

Industry opposition is short-sighted<\/strong><\/p>\n

Not surprisingly, the chemical industry is vociferously opposed to H.R. 5820\u2019s lightweight hammer provision; see, for example, Mr. Cal Dooley\u2019s statement at time 2:48:02 in the video of the July 2010 hearing on the bill<\/a>. \u00a0He suggested that this provision would stifle innovation and harm U.S. chemical companies against their competition abroad.<\/p>\n

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\u2019s own customers<\/a>, more than anyone else, are demanding more and better information about the chemicals they buy, and more, not less, evidence of their safety.<\/p>\n

It also ignores the fact that the rest of the world is moving ahead faster than we are to address chemical safety.\u00a0 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.\u00a0 Yet China\u00a0bars domestic use of formaldehyde-laced plywood that until recently we allowed to be imported<\/a>, 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<\/a>.<\/p>\n

Innovation toward safety<\/strong><\/p>\n

Any consideration of arguments about innovation and competitiveness needs to be viewed from this starting point:\u00a0 All too often, a chemical’s safety has been at best a tangential consideration.\u00a0 A major goal of TSCA reform should be to ensure that innovation toward safety<\/em> is an integral part of how chemicals are produced and used in this country.<\/p>\n

In my view, one of the most egregious failings of TSCA has been its failure to incentivize innovation toward safer chemicals and products.\u00a0 Instead, it has perpetuated a chemicals industry that has little incentive either<\/em> to replace existing chemicals \u2013 because they skate along without any scrutiny at all \u2013 or to ensure that new chemicals it does introduce are safe (or at least safer than the existing chemicals with which they will compete) \u2013 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.<\/p>\n

As I\u2019ve noted in an earlier post<\/a>, I support provisions in H.R. 5820 that would:<\/p>\n