The U.S. Congress is set to enact a broad, bipartisan reform of the nation’s toxic substance safety law. The bill is seen as a compromise between the chemical industry and public health and environmental advocates. But there are some who say it does not go far enough to protect Americans’ health. And some of them say the new law will undermine efforts by states, including Maine, that have pioneered toxics regulation.
Under the current law, which is 40 years old, it’s been difficult for the federal government to regulate or ban substances that are known to be toxic. The new bill would change that, and allow the federal Environmental Agency to assess, regulate and even ban chemicals that it finds harmful to human health.
“I’m very glad we’re moving forward and I think as everyone knows we have long needed to update the toxic substances control act, it’s a very critical piece of legislation,” says Chellie Pingree, Maine’s first congressional district Representative.
She says it’s a good thing the measure is moving forward, but even she voted against it this week. Heres’ why — she says it allows the federal government to preempt work by states which want to move forward with their own rules on toxic substances.
“I think there were parts of this that were designed to kill the activities going in states like Maine and designed to slow down the process of discovering which chemicals are toxic and which ones should be regulated,” she says.
In 2008, Maine was one of a handful of states to enact its own laws to provide for risk assessments for chemicals and to require manufacturers to disclose their use in certain products, and in some cases, to ban them. Since then five chemicals have been classified as substances of “priority concern” and some have been banned.
Those bans will be grandfathered under the new law. But other state efforts to regulate potentially harmful chemicals could grind to a halt.
“The states will be in a competitive race with the EPA to see who can get to dangerous chemicals first,” says Michael Belliveau, Executive Director of the Environmental Health Strategy Center.
The new law, he says, would bar state regulation of a chemical which the EPA decides to review itself. For instance, Maine recently required manufacturers to disclose sales of products containing some hormone disrupting chemicals known as pthalates. But unless the administration of Governor Paul LePage acts to ban them before the new law takes full effect — which is unlikely, Belliveau says — it could preempt any such effort by the next governor.
“It’s pthalates in Maine, it’s flame retardants in Washington DC, it’s methylene chloride in California — all these states are working on different chemicals,” says Belliveau. “If EPA gets there first. If they say this is a federally-designated high priority chemical then the states are blocked. They are stopped in their tracks. They can not restrict the chemical while EPA is studying the same chemical.”
That’s a four year process. And even if the EPA moves to regulate a product, states would be barred from enacting stricter regulations — chilling any state-level effort to review a chemical that’s likely to be reviewed by the EPA, Belliveau says.
Industry supporters say there are provisions allowing states to petition the EPA to approve local action when a chemical is discovered to pose an immediate public health emergency. And Judah Prero, a lawyer who’s worked for the industry’s lobbying group, the American Chemistry Council, says the industry recognized that the law needed to be updated — and that manufacturers otherwise might have to contend with an ever-expanding hodgepodge of state-level regulations. He also says there was a strong business case for stronger federal oversight.
“There has been a weakening of consumer confidence in the safety of chemicals because there isn’t a strong regulatory structure in the federal government,” says Prero. “Ultimately manufacturers are better served when they have that stamp of approval.”
The senate passed an earlier version of the measure unanimously and is expected to do so again, sending it on to President Obama for his expected approval.