Using Law and Policy to Address Chemical Exposures: Examining Federal and State Approaches

• Author: Gail Shibley, Doug Farquhar, Montrece Ransom, and Lisa Caucci
• Pages: 97-141

USING LAW AND POLICY TO ADDRESS

CHEMICAL EXPOSURES:

EXAMINING FEDERAL AND STATE APPROACHES

G. SHIBLEY,* D. FARQUHAR,** M. RANSOM ,*** AND L. CAUCCI****

Copyright © 2014, G. Shibley et al. Work prepared by Lisa Caucci an d Montrece Ransom,

as officers or employees of the federal government “as part of their official duties,” is

defined as a work of the United States government. In general, under § 105 of the

Copyright Act, such works are not entitled to domestic copyright protection under U.S. law.

* Gail Shibley, J.D. is currently Chief of Staff to the mayor of Portland, Oregon. After

serving in the Oregon legislature and in the federal government’s Senior Executive Service,

Shibley was appointed Oregon Environmental Public Health Administrator, the position she

held while researching this Article. She earned her law degree from Lewis & Clark School

of Law. The views expressed are solely personal and do not reflect any official position of

a public agency.

** Doug Farquhar, J.D. directs the Environmental Health Program at the National

Conference of State Legislatures (NCSL). He has written books and articles on state

legislative policy, and has recently been asked to become a columnist for the National

Environmental Health Journal. Prior to coming to NCSL, Doug worked in the Texas House

of Representatives for the Natural Resources and Appropriations Committees an d for

Congressman Schaefer on Capitol Hill in Washington. He received his J.D. from the

University of Denver (DU) and undergraduate degree from the University of Texas in

Austin. He is an adjunct professor in the DU graduate school of Environmental Policy and

Management and at the Colorado School of Public Health. The views expressed are solely

personal and do not reflect any official position of NCSL.

*** Montrece Ransom, J.D., M.P.H. currently serves as a Senior Pub lic Health Analyst

with the Public Health Law Program, Office for State, Tribal, Local, and Territorial

Support, Centers for Disease Control and Prevent ion. She attended the University of

Alabama School of Law. The findings and conclusions in this publication are those of the

author and do not necessarily represent the official position of the Centers for Disease

Control and Prevention/the Agency for Toxic Sub stances and Disease Registry.

**** Lisa Caucci, J.D., M.A. is currently an Oak Ridge Institute for Science and

Education (ORISE) Fellow with the Public Health Law Program, Office for State, Tribal,

Local, and Territorial Support, Centers for Disease Control and Preven tion. Lisa is an

alumna of Georgia State University School of Law. The findings and conclusions in this

publication are those of the author and do not necessarily represent the official position of

the Centers for Disease Control and Prevention/the Agency for Toxic Su bstances and

Disease Registry.

98 CAPITAL UNIVERSITY LAW REVIEW [42:97

I. INTRODUCTION

The production and use of hazardous chemicals continues to grow,

with hundreds of chemicals identified in blood, urine, and tissues of

humans. Hazardous chemicals are also identified in the ambient air of

workplaces, schools, and communities and in drinking water and food

supplies.1 Chemical exposures have been linked to many recognized

public health problems, including cancer, cardiovascular disease, asthma,

and obesity.2 Workers in industrial and agricultural settings, and socially

disadvantaged populations, face disproportionately greater chemical

exposures.3 Moreover, sensitive subpopulations, such as children,

pregnant women, and individuals with chronic medical conditions, face

increased risks from exposures.4

Although knowledge about the impact of chemical exposure on public

health has advanced dramatically in the last few decades, the primary

federal law governing chemical safety,5 the Toxic Substances Control Act6

(TSCA), has not been amended significantly since its adoption in 1976.7

Lisa Jackson, the former Administrator of the United States Environmental

Protection Agency (EPA), identified comprehensive reform of the TSCA

as a priority for President Barack Obama’s administration, insisting that

the current law fails to provide EPA with the authority it needs to ensure

chemicals are safe.8 Chemical manufacturers, food processors, high-

1 Scientists Sound the Alarm for Our Health, ALLIANCE FOR A HEALTHY TOMORROW 4,

http://www.healthytomorrow.org/attachments/1_scientists_sound_alarm_may07_final.pdf

(last visited Feb. 20, 2014); see also Lawrie Mott et al., Our Children at Risk: The Five

Worst Environmental Threats to Their Health, NAT’L RESOURCES DEF. COUNS., http://www.

nrdc.org/health/kids/ocar/chap5.asp (last visited Feb. 20, 2014).

2 2012 Environmental Justice Strategy and Implementation Plan, U.S. DEP’T OF

HEALTH & HUM. SERVICES 1, 7, 42 (Feb. 2012), http://www.hhs.gov/environmentaljustice/

strategy.pdf.

3 Id. at 12–13.

4 Id.

5 Id. at 8−11 (citing various initiatives, beginning in the 1970s, which have furthered

knowledge of the impact of chemical exposures).

6 Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601−2697 (2012).

7 Chemicals Policy Reform, ENVTL. DEF. FUND, http://www.edf.org/health/policy/

chemicals-policy-reform (last visited Feb. 20, 2014).

8 Press Relea se, U.S. EP A, EPA Admini strator Ja ckson Unvei ls New Admin istration

Framework for Chemical Management Reform in the Un ited States (Sept. 29, 2009),

available at http://yosemite.epa.gov/opa/admpress.nsf/0/D07993FDCF801C228525764000

5D27A6.

2014] ADDRESSING CHEMICAL EXPOSURES 99

technology companies, and other industrial interests, however, have

challenged legislative efforts to reform the federal framework.9

In response to chemical exposure concerns, states have studied the

science of toxic chemicals, enacted restrictions on individual chemicals or

classes of chemicals, and worked together to assess risk and prioritize

action.10 Some state governors have issued executive orders that direct

executive agencies to focus their efforts on toxics.11 State legislatures have

also passed legislation targeting specific substances in products such as

toys, jewelry, and cosmetics.12 Recently, some states have moved toward a

more comprehensive approach to regulating chemicals in consumer

products by asking regulators to review all chemicals and identify those

that are particularly hazardous to the public’s health.13

This Article examines both federal and state policy approaches for

addressing chemical exposures, with particular focus on those laws that are

most relevant to consumer and household exposures. Part II outlines the

federal framework for regulating chemicals and briefly describes three

major federal statutes.14 Part III identifies recent state efforts to protect

health by restricting or regulating these types of chemicals.15 Part IV

analyzes selected legal issues, including preemption and the constitutional

boundaries required by the Supremacy Clause, and the Interstate

Commerce Clause as construed by courts examining states’ attempts to

protect the health and safety of their residents.16 Part V offers a discussion

of the National Conversation on Public Health and Chemical Exposures in

an effort to explore and offer recommendations on programmatic and

policy approaches to better prevent harmful chemical exposures.17 This

Article concludes by offering practical solutions to offer effective,

9 See generally Sheila Kaplan, Reform of Toxic Chemicals Law Collapses as Industry

Flexes Its Muscles, POL. DAILY (Oct. 13, 2010), http://www.politicsdaily.com/2010/

10/13/reform-of-toxic-chemicals-law-collapses-as-industry-flexes-its-m/ (indicating various

stakeholders that have challenged federal regulati on of toxic chemicals).

10 Katie Greehaw, States Taking the Lead to Curb Toxic Chemical Exposure, CENTER

FOR EFFECTIVE GOV’T (Oct. 22, 2013), http://www.foreffectivegov.org/node/12756.

11 See infra notes 206–15 and accompanying text.

12 See infra note 180 and accompanying text.

13 See ME. REV. STAT. ANN. tit. 38, § 1692 (Supp. 2012).

14 See infra Part II.B–D.

15 See infra Part III.

16 See infra Part IV.

17 See infra Part V.