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August 3, 2014

InsideEPA Features Blog Post by Lynn L. Bergeson, Stirs Response and Debate

Bergeson & Campbell, P.C.

In “TSCA Reform: Dead for Now,” Lynn L. Bergeson’s July 18th post on the American College of Environmental Lawyers blog, Ms. Bergeson shared the following thoughts:

“Despite high hopes earlier this year for the promise of a legislative make-over, Toxic Substances Control Act (TSCA) reform measures are dead, certainly for the remainder of this Congressional session and possibly the next. In the category of all things happen for a reason, maybe there is a silver lining to this disappointing result.

“TSCA is among the oldest federal environmental laws, one of the most neglected, and clearly one of the most complex and divisive. At the ripe old age of 38, TSCA’s elasticity has proven remarkable given the tremendous technological advancements made in the chemical manufacturing sector over the past four decades. In other respects, however, TSCA is impossibly ill-suited to address advancements in risk identification, assessment, and management, societal changes that have profoundly recalibrated consumer expectations, and a more muscular role for states, especially forward-thinking ones like California.

The TSCA reform debate has focused on a handful of tough issues — preemption, safety standard/risk management, and prioritization of existing chemicals. Preemption tends to dwarf other issues and how amenable preemption is to resolution has been made all the more challenging given the implementation of the California Safer Consumer Products Regulations (SCPR), which went into effect last October. The SCPR truly are game-changers and require consumer product manufacturers to assess the safety of chemicals in consumer products by mandating chemical substance “alternative” assessments to ensure products marketed to consumers contain chemical components least likely to cause risk to human health and the environment.

“TSCA reform in the shadow of a Presidential election and a new Congress, the composition of which is anything but clear, makes meaningful predictions impossible. A question worth pondering is not when TSCA will be amended, but whether we bother at all. The European Union Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) chemical management model, like it or not, is firmly embedded in multiple jurisdictions, and has already triggered massive changes and product deselection in the chemical sector. The California SCPR are in place and with each passing day are becoming the default standard against which product formulation is being measured, fueled in no small part by a retailer imperative that directionally is joined at the hip with the California approach of “just get rid of the bad stuff.” Given Congress’s attention span, the better part of valor may be to direct Congress’s limited attention to climate change and give up on TSCA reform.”

An article in the August 1st edition of InsideEPA featured Ms. Bergeson’s blog comments, as well as reaction from unnamed industry sources:

“Bergeson’s comments, however, drew quick disagreement from industry sources, who remain committed to pushing for passage of TSCA reform through Congress as quickly as possible. But they acknowledge that their goal is unlikely to be accomplished anytime soon.”

The article went on to say that: “One industry source argues that if stakeholders stop pushing for TSCA reform, it will quickly die in Congress, and that a new statute is needed, regardless of REACH and SCPR. The source says that for companies ‘to have a predictable, national system, we need a credible federal law. I cannot underestimate how difficult that will be because if [a TSCA reform proposal] is too weak,’ environmental groups will reject it, ‘and if it’s too strict, we can’t keep the industry’ stakeholders together.”

In a response to the InsideEPA feature, Ms. Bergeson published these further remarks on LinkedIn: “This unnamed source misses the point. TSCA reform is a laudable goal, and one that I have been a strong proponent of for years. That it has eluded realization after all these years is not inexplicable and has come with a considerable cost given the global chemical management programs well underway. The point is time is of the essence and if industry wishes to reform TSCA, industry needs to step up, cut the legislative deal, and make it happen. Pious platitudes about agreeing on principles does not make legislation happen — the hard bargaining of legislative compromise can sometimes be costly for one side of any debate, but if the need is great, so should be the drive to get to yes. So far, none of the parties (the Administration, environmentalists, or the chemical industry) seems to want a new TSCA badly enough to make it happen.”