March 01, 2015

Vantage Point

Gale Lea Rubrecht

This Toxics Issue of NR&E celebrates the upcoming fortieth anniversary of the Toxic Substances Control Act (TSCA) in 2016. I hope that this issue will provide you with insights into the challenges surrounding the efforts to reform the nation’s chemical management law and help enable reform. The issue features an interview of Jim Jones, assistant administrator for EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP). EPA Assistant Administrator Jones explains OCSPP’s role and discusses, among other things, EPA’s work plan to prioritize chemicals, risk assessments and negotiated risk management for priority chemicals, confidentiality, bee health issues and neonicotinoids, nanomaterials regulation, and green chemistry.

The first two articles explore reforming and modernizing TSCA. Larry Culleen, in his article titled “Removing Roadblocks to TSCA Reform,” identifies the five roadblocks that have stalled TSCA reform efforts, discusses the reasons for these roadblocks, and urges targeted amendments to the existing law, rather than a complete rewrite of TSCA. Sean Wright explores the chance for bipartisan TSCA reform in his article titled “Fixing an ‘Outdated’ Law: The Chance for Bipartisan TSCA Reform.” His article discusses the various bills that have been introduced in Congress and provides an overview of their major provisions.

The next article by Angela Levin and Maria Souder examines chemical management under TSCA in the absence of congressional reform. In their article, Ms. Levin and Ms. Souder explore chemical management under section 6 of TSCA. They discuss EPA’s recently announced work plan for priority chemicals, risk assessments and management, and regulation under section 6. They offer that section 6 would discourage states, retailers, and consumers from seeking to bridge the perceived regulatory gap, even in the absence of preemption.

Judah Prero examines the controversial issue of preemption in his article titled, “50 Ways To . . .: Chemical Management, State and Federal Government, and Preemption Paranoia.” His article discusses the concerns of certain state attorneys general about the form of preemption in TSCA reform proposals. He offers that a strengthened preemption provision would allow states to take actions for environmental protection and is needed to ensure chemicals are regulated similarly and safely across the country.

Following Mr. Prero’s article on preemption, the next article, “Chemical Regulation in the Laboratories of Democracy,” by Emilee Mooney Scott examines various state approaches from California’s warning labels to Washington’s database. Ms. Scott explains that the state programs are analogous to consumer product safety laws and regulations. Ms. Scott concludes by discussing compliance challenges confronting businesses as a result of varying applicability of state programs and the lack of useful guidance documents.

The next two articles focus on issues arising from chemical disclosure. Eric Gotting and Martha Marrapese examine First Amendment issues in the context of labeling and compelled disclosure in their article titled, “Chemical Labeling and Disclosures: Can the Government Put Words in Your Mouth?” They discuss the levels of scrutiny courts have applied in addressing such constitutional issues and offer insights on how to handle these issues.

Following the First Amendment article, the next article by Paul Betzer and Jason Brinkley explores the disclosure of chemicals used by the oil and gas industry in hydraulic fracturing. They examine how states have responded in the absence of comprehensive federal rules governing the disclosure of the various chemical components of fracking fluids.

The last three articles explore the challenges and problems in applying TSCA to new and future chemicals. In her article titled, “New Technologies and an Old Law: Renewable Chemicals Invite Challenges under TSCA,” Lynn Bergeson explores application of TSCA to renewable chemicals. She proposes revisions to the statute to facilitate the commercialization of renewable chemicals.

The next article, “Chasing Hazards: Toxicity, Sustainability, and the Hazard Paradox,” by Charles Franklin, explores regulation of greener, safer, and more sustainable chemicals and urges adoption of a life-cycle analysis. He examines leading environmental standards and offers that screening products based on hazard alone could drive chemical production to greater, rather than less, human health and environmental impacts.

Finally, Roger Hanshaw explores the challenges in regulating nanomaterials in his article titled, “Regulation of Nanomaterials: What Are They? How Are They Regulated? Who Decides?” He examines various approaches to nanomaterials regulation in the United States and European Union. His article urges that regulation of nanomaterials focus on their chemical and physical properties and offers options for future nanomaterial regulation.

Gale Lea Rubrecht

Gale Lea Rubrecht is the issue editor of the Spring 2015 issue of Natural Resources & Environment.