Comment on Using Competition-Based Regulation to Bridge the Toxics Data Gap
| Date | 01 August 2009 |
| Author |
8-2009 ENVIRONMENTAL LAW AND POLICY ANNUAL REVIEW 39 ELR 10799
Comment on Using Competition-
Based Regulation to Bridge
the Toxics Data Gap
by Richard A. Denison, Ph.D.
Richard A. Denison is a Senior Scientist at the Environmental Defense Fund.
In -
ics Data Gap,1 Prof. Wendy Wagner oers a usef ul and
provocative proposal intended to address the many short-
comings of current U.S. policy toward industrial chemicals.
e proposal derives from a diagnosis of the root causes of
these policy failings with which I wholeheartedly concur.2
e main elements of that critique are the following:
• Despite the fact that the Toxic Substances Control Act
(TSCA)3 states unambiguously that it is U.S. policy
that data be developed for a ll chemicals in commerce
adequate to determine their health and environmental
eects, and that manufacturers bear the responsibility
to develop those data,4 for the great majority of chemi-
cals, few data are available to the public or to the U.S.
Environmental Protection Agency (EPA) to character-
ize their hazards.
• EPA’s authority to require testing of chemicals is highly
constrained and hence seldom employed.
• Companies have little or no incentive to develop health
and environmental data on their own initiative, not
only for chemicals already on the market but also for
new chemicals subject to pre-manufacture notication
and review by EPA. And because the default in the
face of data gaps or uncertainties is no action, indus-
try has an incentive to seek to perpetuate rather than
rectify t hem.
1. Wendy Wagner,
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. See R A. D, N T I: A C A
C, E U, U S P I
C (2007), available at http://www.edf.org/documents/6149_Not-
atInnocent_Fullreport.pdf (last visited June 1, 2009); Richard A. Denison,
, 39 ELR 10020 (Jan. 2009).
3. 15 U.S.C. §§2601-2692, ELR S. TSCA §§2-412.
4. TSCA’s preamble states: “It is the policy of the United States that . . . adequate
data should be developed with respect to the eect of chemical substances and
mixtures on health and the environment and that the development of such
data should be the responsibility of those who manufacture and those who
process such chemical substances and mixtures.” 15 U.S.C. §2601(b)(1), ELR
S. TSCA §2(b)(1).
• Even when EPA does manage to obtain evidence of
signicant risk, its authority to act to control a chemi-
cal’s production or use is even more constrained than
its data gathering authority and is virtually never used.5
• EPA’s access to information, not to mention its resources,
is dwarfed by those of the chemicals industry.
ese failings yield a dysfunctional regulatory environ-
ment and chemicals market, ill-informed and unable to dis-
tinguish, let alone motivate or reward the development of,
more benign chemicals and chemica l products.6 It is little
wonder, then, that companies have seen litt le need to inno-
vate toward inherently safer chemical and product design.
Seeking to break up and recast this market dynamic is
therefore entirely appropriate, and Wagner’s proposal seeks
to do just that. In doing so, it also posits a pivotal role for
government in the hea rt of the chemicals market, one that
goes well beyond its traditional regulatory role: that of judge
and jury in deciding which chemica ls and products should
succeed in that market and which should fail. Proposing such
a role for government raises both major pragmatic questions
(many of which Wagner herself anticipates) as to whether
and how it might work in the face of government’s limited
authorities and the enormity of the chemicals economy, and
a more fundamental question as to the appropriate role of
government in market selection and deselection of chemicals.
Wagner’s proposal is not unique in assigning a role to
government in identifying and seeking to promote the sub-
5. Since adoption of TSCA in 1976, EPA has succeeded in mandating limited
restrictions on the production or use of only ve substances. e ve sub-
stances are: polychlorinated biphenyls (PCBs), by virtue of a mandate from
Congress; fully halogenated chlorouoroalkanes used as aerosol propellants;
dioxin in certain wastes; asbestos (limited to products no longer in commerce);
and hexavalent chromium used in water treatment chemicals in comfort cool-
ing towers. See U.S. G’ A O, C R,
O E I EPA’ A A H R
M I C R P, (2005) R N. GAO-05-458,
at 58-60, available at http://www.gao.gov/new.items/d05458.pdf.
6. See Joseph H. Guth et al., ,
17 N S: J. E. O H P’ 233 (2007),
available at http://www.louisvillecharter.org/paper.safetydata.shtml (last vis-
ited June 1, 2009).
Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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