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Follow the states on federal safer chemicals reform

Mike Belliveau This blog was originally published by the Environmental Health Strategy Center.

By Mike Belliveau, Executive Director for the Environmental Health Strategy Center.

I was pleased to see yet another display of bipartisan state leadership aimed at preventing disease, disability and environmental damage from toxic chemicals. Today, the leading coalition of state agency environmental directors, the Environmental Council of the States (ECOS), announced adoption of a resolution calling for strong federal legislation to fix our broken chemical safety system. In exercising state leadership, they proved the case for a new federal partnership with the states to ensure chemical safety.

Current law, the federal Toxic Substances Control Act of 1976 (TSCA), has failed miserably in protecting human health and the environment from the tens of thousands of chemicals used in everyday products and materials. That’s why the Environmental Health Strategy Center has joined the national Safer Chemicals Healthy Families coalition to campaign for a comprehensive TSCA overhaul.

The ECOS call-to-action mirrors many of the same policy elements advanced by the pending federal legislation, H.R. 5820, the Toxic Chemicals Safety Act of 2010 sponsored by Reps. Bobby Rush (D-IL) and Henry Waxman (D-CA). These include support for new provisions of law that:

  • Hold the chemical industry accountable for proving that existing and new chemicals are safe;
  • Provide the U.S. Environmental Protection Agency (EPA) with ample new authority to determine the safety of chemicals and to take action to restrict chemicals that are unsafe or pose an imminent hazard; and
  • Preserve the authority of the states to freely regulate chemicals in order to protect their citizens and environment.

Federal policy makers would do well to follow the recommendations of the states to strengthen the pending safer chemicals legislation in two additional ways:

1. ECOS supports new EPA authority to impose interim conditions and take expedited action on chemicals before completing full safety determination, when data or information indicate there are significant concerns.

H.R. 5820 requires EPA to take similar action but only for one group of the worst-of-worst chemicals – the PBTs, which pose a triple threat because they are Persistent (long-lived in the environment), Bioaccumulative (build up to high levels in the food web including human breast milk) and Toxic (harmful to living things). For example, mercury, lead and the PBDE flame retardants are notorious PBTs that have been targeted for elimination by the states to prevent otherwise inevitable harm.

Section 32 of H.R. 5820 would require EPA to identify PBTs to which people are exposed and impose immediate restrictions to reduce human exposure to the greatest extent practicable. That makes a lot of sense and would place the federal government in good company with the U.S. states and international community who are working to phase out PBT chemicals.

However, the ECOS recommendation better matches the science and effective chemical policy track record of the states. Significant concerns about any chemical should trigger authority to act on early warnings to reduce use of and exposure to the chemical, not just PBTs.

Some worst-of-worst substances are not PBTs, although exposure persists from widespread use and daily contact with products. For example, available data support interim action to restrict uses of bisphenol A, the notorious hormone disrupting chemical used in paper receipts and food can linings, and the phthalates, used in vinyl plastic and personal care products.

Comprehensive safer chemical laws passed in Maine and California provide similar authority for state governments to take action on specific uses of chemicals in products based on certain findings. Washington state and Minnesota have passed safer chemical laws that also begin to establish a comprehensive system for regulation of chemicals in products, and similar legislation is pending in other states.

For example, the State of Maine has proposed a rule to restrict the use of BPA in all reusable food and beverage containers under its chemical policy, popularly referred to as the Kid Safe Products Act.

2. ECOS calls for federal policy that authorizes EPA to require an assessment of safer alternatives for any priority chemical, including PBTs and very persistent, very bioaccumulative chemicals (whose toxicity may not yet be well understood).

Section 35 of the House bill defines what makes up a “safer alternatives assessment,” providing useful guidance to the states and businesses on standard criteria and a process for identifying safer alternatives to chemicals of concern. However, H.R. 5820 fails to authorize EPA to require an alternatives assessment, as recommended by ECOS. Instead, its leave the discretion with the chemical industry to decide whether or not they wish formally assess the availability of safer alternatives.

If a manufacturer shows that a new chemical intended for the market is a safer alternative for a specific use of an existing chemical, the federal legislation provides for expedited review and approval of the new chemical. H.R. 5820 also provides for less priority attention of existing chemicals that are shown to be safer alternatives for specific uses of other chemicals. Further, when restrictions on chemicals are proposed by EPA, a manufacturer can obtain a temporary exemption for a specific critical use of the chemical if a safer alternative is not yet available, under Section 6(e) of the bill. In each instance, a safer alternatives assessment will provide the essential proof necessary to meet the test.

Federal policymakers would do well to heed the ECOS recommendation to empower EPA to require safer alternatives assessments at its discretion, rather than leave it up to the self-interest of the chemical industry.

Lastly, the ECOS resolution has made the compelling case for a federal-state partnership for managing chemical safety in the United States. Consistent with the proposed federal legislation, the states seek a working collaboration with the federal government. They want to share confidential data on chemicals, jointly prioritize ‘hot spots’ where communities are disproportionately exposed to toxic chemicals, and to consult and coordinate on other areas of mutual interest. The states also want and deserve federal funding to assist in carrying out their chemical management activities at the state level.

All these state needs are reflected in both the ECOS resolution and in the legislation’s proposed amendment to Section 28 of TSCA regarding state programs.

State leadership on toxic chemicals has helped drive the debate on federal reform and brought the chemical industry to the table for first time in support of TSCA modernization. The ECOS resolution reflects just the latest example of state leadership on safer chemicals policy.

We should honor the state’s authority and role, and harness the energy of state leadership to finally fix our broken federal chemical safety system.