Comment on Using Competition-Based Regulation to Bridge the Toxics Data Gap

• Date: 01 August 2009

39 ELR 10796 ENVIRONMENTAL LAW REPORTER 8-2009

Comment on Using Competition-

Based Regulation to Bridge

the Toxics Data Gap

by Mark Greenwood

Mark Greenwood is a partner in the Washington, D.C., oce of Ropes & Gray LLP.

In her Article, Prof. Wendy Wagner takes on one of the

core challenges of U.S. chemical management policy:

how to assure that useful toxicity data is generated about

chemicals in commerce. She oers a creative proposal for

harnessing competitive instincts in companies to assure that

such data are developed. As described below, there are impor-

tant questions about whether this proposal will actually work

in practice. At the same time, the history of chemical regula-

tion in the United States has taught us that our assumptions

about how the market will respond to specic regulatory

policies are often wrong. In that context, this proposal and

other experimentation with competition-based regulatory

initiatives deserve serious attention.

At the outset of the article, Professor Wagner presents a

fairly pessimistic assessment of the current state of infor-

mation about chemica l risk in our society. She presents her

perspective on the failures of the Toxic Substances Control

Act (TSCA) to generate necessary toxicity information about

chemicals, arguing that the U.S. Environmental Protection

Agency (EPA) is stuck in a “cops and robbers” legal fra me-

work that stymies its ability to force testing by regulation.

She also indicates t hat the marketplace and the tort liability

system provide additional disincentives for chemical pro-

ducers to generate and disseminate information about their

products. Her conclusion is that “multiple, entrenched incen-

tives for ignorance help explain the substantial lack of toxic-

ity testing for most chemicals in the United States.”1

Certainly there is some reality to the disincentives she

describes. At the same time, it is not the case that these exist-

ing mechanisms have been a complete failure. If one focuse s

on the set of chemicals that are actually in commerce, it is

a misnomer to suggest that there are no toxicity data avail-

able on these chemicals. Particularly in the last several years,

government programs around the world, both regulatory and

voluntary, have stimulated more toxicity testing.2 In addition,

1. Wendy Wagner, Using Competition-Based Regulation to Bridge the Toxics Data

Gap, 39 ELR (E. L.  P’ A. R.) 10789 (Aug. 2009) (a longer

version of this Article was originally published at 83 I. L.J. 629 (2008)).

2. As an example, EPA has reported that its High Production Volume (HPV)

Challenge program, which seeks voluntary commitments from chemical man-

chemical producers have faced increasing demand for prod-

uct safety information from their downstream customers.

In some cases, these eorts have evolved into collaborations

with a broader community of academic and non-governmen-

tal institutions.3

One of the problems that have undermined policy debates

on U.S. chemical regulation for several decades has been a

lack of common understanding about the relevant universe

of chemicals. Many commenters, including Professor Wag-

ner, indicate that there are 75,000 chemicals in commerce

in the United States. is number, however, is an estimate of

the number of chemicals on the TSCA Chemical Substances

Inventory, a list of chemicals that may have been in com-

merce since 1978. EPA has recognized, however, that this

list is unlikely to represent the universe of chemicals that are

actually in commerce.4 Most recently, in t he context of its

Chemical Assessment and Management Program (ChAMP),

EPA has estimated that the universe of organic chemical

substances produced in a signicant volume (above 25,000

pound per year), is approximately 6,750 substances.5 When

measured against that universe, the st ate of available chemi-

cal toxicity testing does not appear as bleak.

e better way to frame the problem is that policymak-

ers face a mixed picture of chemical testing. Some chemicals

in commerce are well characterized, reecting mandates and

ufacturers to provide a base set of testing information on chemicals produced

at volumes of over one million pounds per year, has made publicly available

over 8,000 previously unpublished studies. See U.S. EPA, Basic Information—

High Production Volume (HPV ) Challenge Program, http://www.epa.gov/

hpv/pubs/general/basicinfo.htm (last visited June 1, 2009). In conjunction

with this voluntary program, EPA has required testing under the authorities of

TSCA for HPV chemicals that were not sponsored in the voluntary program.

For the most recent rule of this nature, see Testing of Certain High Production

Volume Chemicals; Second Group of Chemicals, 73 Fed. Reg. 43314 (July 24,

2008) (to be codied at 40 C.F.R. pt. 799).

3. An example of such collaborations is the Green Chemistry and Commerce

Council. See http://www.greenchemistryandcommerce.org/home.php (last

visited June 1, 2009).

4. See U.S. EPA, Chemical Assessment and Management Program (ChAMP):

TSCA Inventory Reset, http://www.epa.gov/champ/pubs/hpv/tsca.html (last

visited June 1, 2009).

5. U.S. EPA, Chemical Assessment and Management Program (ChAMP): Basic

Information, http://www.epa.gov/champ/pubs/basic.html (last visited June 1,

2009).

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