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Home > Nanotechnology Columns > Project on Emerging Nanotechnologies > The Need for Nano in the TSCA Update

David Rejeski
Director
Project on Emerging Nanotechnologies

Abstract:
Debate began in earnest on changes to federal toxics law last month as the House consumer protection subcommittee held its first hearing of the new Congress on the need to update the law. How one defines what changes need to be made to the law can differ - whether the person represents the chemical industry, an environmental organization or a host of other interests - but there was unanimous consent among the panel testifying that the Toxic Substances Control Act (TSCA) needs changes. This is a major step forward in efforts to provide better oversight of nanotechnology.

March 9th, 2009

The Need for Nano in the TSCA Update

Debate began in earnest on changes to federal toxics law last month as the House consumer protection subcommittee held its first hearing of the new Congress on the need to update the law. How one defines what changes need to be made to the law can differ - whether the person represents the chemical industry, an environmental organization or a host of other interests - but there was unanimous consent among the panel testifying that the Toxic Substances Control Act (TSCA) needs changes. This is a major step forward in efforts to provide better oversight of nanotechnology.

For starters, under TSCA the Environmental Protection Agency (EPA) has a limited ability to require information on the new chemical notices it receives, and manufacturers often maintain that the required data is "confidential business information." These reasons, coupled with a list of other shortfalls, hamper efforts to obtain more risk information on novel nanomaterials.

J. Clarence Davies, a senior advisor to the Project on Emerging Nanotechnologies (PEN) and a witness at the Feb. 26 hearing, believes there are much-needed changes to the 33-year-old law. Nonetheless Davies, the author of the original version of what became TSCA, has highlighted the potential use of the current TSCA statute to obtain more information on nanotechnology through the use of a "significant new use rule" (SNUR) provision, which gives EPA broad authority to consider a class of chemicals as new and obtain needed risk information.

However, while some policy experts look at existing tools under TSCA to fill data gaps on the potential risks posed by engineered nanomaterials, there is a dire need to push the debate forward on how to update the law. The Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) program, the new law in the European Union regulating industry, has been implemented and places the responsibility on producers to prove the safety of a product before it is available on the market. As one panelist said during the hearing, it is a "reality" - meaning if a company is going to play in the European market, it will have to contend with the regulation and prove the safety of its product before selling it.

Industry officials testifying before the subcommittee were hesitant to support REACH, but there was an endorsement by the American Chemistry Council for the Canadian regulatory model, which features a priority system for determining which chemicals to assess. Some environmentalists contend that Canada's narrower approach would not transfer well to the larger U.S. chemical market, would not address existing data gaps and does not require the mandatory reporting for most chemicals that is the hallmark of REACH.

Regardless of what regulatory approach one prefers, there is no doubt that TSCA needs to be updated. As Rep. Henry Waxman (D-CA), the chair of the powerful House Energy & Commerce Committee, said at the hearing, "This conversation is long overdue. For years it has been clear that TSCA is not living up to its intent." Echoing Waxman's sentiment is Davies' testimony before the subcommittee, in which he argued that there is a "mismatch" between the existing regulatory system and the characteristics of 21st century science and technology. "This mismatch will grow rapidly," Davies said. "I urge this committee to devote some time and effort to considering what new oversight and regulatory approaches are needed. Considering TSCA's effectiveness is a step in the right direction, but over the long run we are going to need whole new approaches to deal with the new technologies."

Nanotechnology highlights the problems with TSCA, making it crucial that we make oversight of the emerging technology a cornerstone of any legislative debate on how to update the federal toxics law. Without that, any update will be incomplete.




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