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
 
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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, NATL 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. DEPT 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 811 (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. §§ 26012697 (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 GOVT (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.

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