Lynn L. Bergeson Quoted Extensively In BNA Daily Environment Report Article “Nanomaterials Said to Illustrate Need for TSCA Reform”

The November 10, 2015, BNA Daily Environment Report article  “Nanomaterials Said to Illustrate Need for TSCA Reform” included comments from Lynn L. Bergeson and the NanoBusiness Commercialization Association (NanoBCA) on the importance of TSCA reform for nanomaterials.

[…]Lynn Bergeson, managing partner of Bergeson & Campbell P.C., said the EPA could have used the authority the House and Senate [TSCA modernization] bills would give the agency to order the submission of existing data, without rulemaking. The information from such a data call-in could have increased public confidence in nanoengineered chemicals that already are in commerce, she said. Bergeson’s law firm has been tracking regulatory policy aspects of nanotechnology for more than 10 years.

[…]Bergeson, whose law firm represents clients working with nanomaterials including the NanoBusiness Commercialization Association (NanoBCA), characterized industry’s reaction differently. Companies pushed back on EPA’s requested information because the proposed rule used vague, subjective requirements, she said.

In its comments, NanoBCA raised objections such as:

• the proposed rule’s definition of a reportable chemical being “inherently subjective and therefore confusing and unenforceable”;
• specific requirements being “impracticable and unenforceable” and
• there being “no lawful basis” for a proposed 135-day review period for nanoengineered chemicals that would have treated these substances differently than any other chemical under EPA’s jurisdiction.

Over the more than 10 years she has worked on policies for nanoengineered chemicals, Bergeson said, she has begged and cajoled companies to provide the agency information it needs to review chemicals and offer the public assurance about their safety. “But I can’t look the other way when statutory authority is being misinterpreted no matter how much I want to sympathize,” Bergeson said. The EPA could have gotten useful information from companies had it worked with interested parties to craft the data requirements it proposed, she said.

California’s experience shows that companies are willing to provide information, Bergeson said.
The issue isn’t whether EPA should have information on nanoengineered chemicals—it should, Bergeson said. The problems with the particular data-collection rule the agency proposed were both structural and legal, she said. Provisions in EPA’s proposal were not consistent with its legal authority under Section 8(a), Bergeson said. “Speaking on behalf of the NanoBusiness Commercialization Association, we hope EPA issues a final rule that is consistent with TSCA’s authority and addresses the agency’s fundamental needs,” she said.

If the EPA had the authority under TSCA to issue a data call-in similar to that of California, the agency might not have gotten all the information it would like, but it would have gotten useful information, Bergeson said. […]