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Comment on Using Competition-Based Regulation to Bridge the Toxics Data Gap

August 2009

Citation: 39 ELR 10799

Issue: 8

Author: Richard Denison

In Using Competition-Based Regulation to Bridge the Toxics Data Gap, Prof. Wendy Wagner offers a useful and provocative proposal intended to address the many shortcomings of current U.S. policy toward industrial chemicals. The proposal derives from a diagnosis of the root causes of these policy failings with which I wholeheartedly concur. The main elements of that critique are the following:

- Despite the fact that the Toxic Substances Control Act (TSCA) states unambiguously that it is U.S. policy that data be developed for all chemicals in commerce adequate to determine their health and environmental effects, and that manufacturers bear the responsibility to develop those data, for the great majority of chemicals, few data are available to the public or to the U.S. Environmental Protection Agency (EPA) to characterize their hazards.

- EPA's authority to require testing of chemicals is highly constrained and hence seldom employed.

- Companies have little or no incentive to develop health and environmental data on their own initiative, not only for chemicals already on the market but also for new chemicals subject to pre-manufacture notification and review by EPA. And because the default in the face of data gaps or uncertainties is no action, industry has an incentive to seek to perpetuate rather than rectify them.

Richard A. Denison is a Senior Scientist at the Environmental Defense Fund.

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