University of Maryland Francis King Carey School of Law

Conferences & Symposia

Regulatory Dysfunction in 3D – TSCA, CPSA, and the OSH Act

Thursday, October 8, 2009

In her first publicly released memo to EPA staff, incoming Administrator Lisa P. Jackson tagged the agency’s efforts to manage toxic chemical risks as a top priority for regulatory reform. The Occupational Safety and Health Administration’s 2010 enforcement program will emphasize, among other things, occupational exposures to lead, diacetyl, and other flavoring chemicals. And the Consumer Product Safety Commission is gearing up to implement programs that will significantly reduce children’s exposure to lead and phthalates. Against this backdrop of a reinvigorated regulatory community, the 2009 Ward Kershaw symposium provided a unique opportunity for legal and policy experts to discuss how the public interest community might press EPA, OSHA, and CPSC to better protect workers, consumers, and the environment from toxic chemicals.

The symposium, Regulatory Dysfunction in 3D – TSCA, CPSA, and the OSH Act, was a joint effort of the Environmental Law Program and the Center for Progressive Reform, a non-profit organization run by Professor Rena Steinzor (President) and UM alum Shana Campbell Jones (Executive Director).

The day began with a panel of agency officials – Wendy Cleland-Hamnett, Acting Director of the Office of Pollution Prevention and Toxics at EPA; Bill Perry, Deputy Director for OSHA’s Directorate of Standards; and Cheryl Falvey, General Counsel at CPSC. The panelists offered their perspectives of the three agencies’ changing chemical risk management policies in light of a new administration and new legislative mandates. Common refrains, of course, were that the three agencies struggle to achieve aggressive toxics-management policies under the combined stresses of limited resources, outmoded statutes, and threats of overly stringent judicial review.

These complaints echoed the findings reported in the Center for Progressive Reform’s white paper "Regulatory Dysfunction: How Insufficient Resources, Outdated Law, and Political Interference Cripple the ‘Protector Agencies,’" which was authored by Professor Steinzor, Professor Sidney Shapiro of Wake Forest University Law School, and CPR Policy Analyst (and UM Law alum) Matthew Shudtz. The white paper, based on Steinzor and Shapiro’s book, The People’s Agents, in addition to decrying the same concerns as the agency officials, proposes a number of reforms to the regulatory system that would energize the federal environmental and public health workforce. Those proposals range from changing the way the agencies’ budgets are calculated, to creating new accountability mechanisms for the agencies.

The symposium’s panelists from EPA, OSHA, and CPSC also each had positive things to say about their upcoming agendas. Ms. Hamnett highlighted her office’s plans to use TSCA %A7 4 test orders get data on high production volume chemicals, implement action plans that will utilize TSCA %A7%A7 5 and 6 to manage risks posed by persist bioaccumulative and toxic chemicals, and revise the Inventory Update Rule to obtain better information on downstream use of and exposure to toxics. Mr. Perry noted that when OSHA finalizes work on safety standards left over from the Bush Administration, the agency will once again turn to improving health standards to limit occupational toxic exposures. And Ms. Falvey explained how CPSC’s renewed focus on education, enforcement, and transparency will improve consumers’ ability to avoid dangerous products.

Following the agency officials’ presentations, conference participants engaged in a wide-ranging discussion about the future of toxic chemicals management. Professor Steinzor led the discussions, along with her Center for Progressive Reform colleagues Wendy Wagner and David Adelman, both of the University of Texas Austin School of Law. Wagner is best known for her work analyzing the problems that courts and regulatory agencies have in dealing with the intersection of science and science-policy. Adelman is a former attorney for NRDC and has since written extensively on science and environmental law.

The conference participants, including other legal scholars, public interest advocates, and UM Environmental Law Program alumni, came up with a number of creative concepts for both short-term and long-term reforms to federal toxics-management policies. New executive orders, narrowly targeted regulatory changes to TSCA rules, and novel ideas about multi-media or competition-based regulation all received attention. By the end of the day, the group had whittled their ideas down to a short list of less than a dozen concepts for regulatory reform that the public interest community might embrace as politically viable options for making immediate improvements in toxic risk management. The ideas, in large part, focused on leveraging multiple sources of toxicological information (e.g., the EU’s REACH program, OSHA monitoring data, TSCA submissions erroneously labeled Confidential Business Information) to give the federal government the tools to eliminate or manage chemical risks.

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500 W. Baltimore Street, Baltimore, MD 21201-1786 PHONE: (410) 706-7214 FAX: (410) 706-4045 / TDD: (410) 706-7714

Admissions: PHONE: (410) 706-3492 FAX: (410) 706-1793

Copyright © 2018, University of Maryland Francis King Carey School of Law. All Rights Reserved