Issue Date: March 21, 2011
When it comes to regulating chemicals, states increasingly are leaving the federal government behind and tackling this issue themselves.
In recent years, California, Maine, Minnesota, and Washington have enacted laws establishing comprehensive regulatory programs to control substances in products. The four states’ statutes call for environmental regulators—often in concert with their health agencies—to compile lists of “chemicals of concern” and promote safer alternatives to the most toxic of them.
More states are considering this kind of legislation to control chemicals in consumer items. In addition, a growing number of states are banning specific uses of substances in products for children, such as bisphenol A (BPA), an estrogen mimic, in baby bottles.
Industry and activists point to a single reason for the growing number of state chemical laws: The federal Toxic Substances Control Act (TSCA) is outdated. That statute remains virtually unchanged since President Gerald Ford signed it into law in 1976. Details of the law make it almost impossible for the Environmental Protection Agency to restrict the use of chemicals that are already on the market. This is particularly the case for thousands of substances that were commercialized before TSCA took effect.
Environmental and health advocates, chemical manufacturers, and the Obama Administration generally agree that Congress needs to modernize TSCA (C&EN, Feb. 14, page 30). Despite this convergence of views, reform of the law has gained little political traction among federal lawmakers.
Frustrated with EPA’s inability to act under TSCA, environmental and health activists have turned to individual states to control chemicals they are concerned about. They also want states to encourage the use of greener products. State legislatures are increasingly responding.
“Each year, more and more states are looking at ways to get at these toxics, and legislators’ interest in these issues will not go away anytime soon,” says Adam Schafer, executive director of the National Caucus of Environmental Legislators.
The chemical industry, however, is vexed by the growing number of state laws. “It’s clear that a patchwork of underresourced state and local programs has the potential to create confusion for consumers, retailers, and manufacturers, and makes it increasingly difficult to do business, hampers investment, and threatens future job creation,” says a statement from the American Chemistry Council (ACC), an association of chemical manufacturers.
But state laws are likely to proliferate and grow in influence “as long as the stalemate continues in the national debate on chemical regulation reform,” says Andy Igrejas, campaign director for Safer Chemicals, Healthy Families. The group is a coalition of businesses and environmental, health, and other advocacy groups that support reform of TSCA.
This year, lawmakers in more than two dozen states introduced chemical-related legislation, according to data from the National Caucus of Environmental Legislators and a group called Safer States, which is a network of state-based environmental and health organizations. The goals of these bills range from phasing out use of a single substance—such as BPA in receipt paper or cadmium in children’s products—to establishing a new state regulatory program for chemicals.
Several states—Washington and California, for example—have moved past the legislative phase and are grappling with implementation of laws enacted in recent years. At the same time, they face severe budget crunches that are challenging their efforts.
But a number of these states are taking a novel approach and not going it alone. They are joining forces for efficiency and effectiveness as they craft 21st-century chemical policies. Specifically, nine states earlier this year announced the formation of the Interstate Chemicals Clearinghouse (IC2) to coordinate their chemical control efforts. This coalition operates under the auspices of the Northeast Waste Management Officials’ Association (NEWMOA), a group of regulators from New England states, New Jersey, and New York.
So far, IC2 includes officials from California, Connecticut, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, and Washington. The Portland, Ore., regional government is participating, too.
Regulating chemicals is “a new kind of effort for the state environmental agencies,” says Terri Goldberg, acting executive director of NEWMOA.
State regulators have had decades of experience with controlling pollution because a number of national environmental laws, including the Clean Air Act and the federal hazardous waste law, rely heavily on them to implement the federal statutes’ provisions, Goldberg says. However, this is not the case with regulating chemicals, she explains, because TSCA falls solely under the jurisdiction of EPA.
As a result, states are highly motivated to work together on chemical regulation and to share expertise and knowledge about chemicals, Goldberg says. This is useful, she says, because “many of the issues that they’re talking about are not unique to a particular state.”
Similarly, Ted Sturdevant, director of the Washington Department of Ecology (DEC), says of IC2: “In the absence of an effective national system for securing and sharing data on toxic chemicals, states are working together to share information and make the most of limited resources.” He notes that a number of state and local environmental agencies are focusing on the reduction of toxic substances in consumer products.
For instance, Washington’s 2008 Children’s Safe Product Act requires DEC to develop a list of chemicals that are toxic and have been found either in children’s products or in humans. Last year, DEC, in consultation with the state Department of Health, released a draft list of 66 substances that met these criteria. DEC is finalizing a regulation that would require makers of children’s toys, jewelry, and other products to report to the state starting in 2012 if their items contain the chemicals.
Maine enacted a similar law in 2008, requiring state regulators to compile a list of chemicals of high concern and requiring adoption of safer alternatives when they are available. In December 2010, the state decided to prohibit BPA in reusable food and beverage containers, an action subject to approval by the Maine Legislature. The future of the effort to ban BPA is uncertain, however, because the state’s new governor, Paul LePage (R), has recently dismissed concerns over the estrogen-like compound. As first reported by the Bangor Daily News, he said: “The worst case is some women may have little beards.” (Video)
New laws in some states require manufacturers to submit information on the use of certain chemicals in consumer products. Members of IC2 want to coordinate and harmonize their collection of this information. There are differences among the states’ legal authority and programs, Goldberg points out, but regulators want to make their programs as similar as possible to facilitate data sharing.
Under TSCA, EPA requires chemical makers to provide information about the uses of their substances every five years. But several states are seeking more data than EPA collects, Goldberg says.
Besides, the federal environmental agency locks up information that companies claim as proprietary in their TSCA reports, including chemical-use data. TSCA makes it a criminal offense for EPA employees and contractors to share this confidential business information with anyone, including state regulators. Some sort of loosening of this strict confidentiality provision is one of the goals of environmental and health groups seeking TSCA reform.
As part of carrying out new state laws, some state agencies have published lists of chemicals targeted for regulatory scrutiny. IC2 is developing a searchable Internet database of substances that are on these state lists, Goldberg points out. This database will describe the toxicity of the compounds and link to other resources that offer more information on these chemicals, according to IC2.
In addition, IC2 is building a wiki—a website that allows users to create and edit content—to help states determine what substances could constitute safer alternatives to a chemical that regulators have pegged for concern. The wiki’s main criteria for assessing potential alternatives are safety, performance, and economic feasibility.
While state lawmakers continue to consider—and enact—legislation to control substances, the chemical industry is actively lobbying against these bills. ACC’s vision for a modernized TSCA includes preemption of state chemical laws in favor of a single national system. The Society of Chemical Manufacturers & Affiliates, an association of mainly small to midsized companies, also favors some sort of preemption to eliminate the potential for disruption of interstate commerce in chemicals.
Yet states continue to surge ahead of the federal government on controlling chemicals, Igrejas of Safer Chemicals, Healthy Families says. As it considers TSCA reform, Congress should acknowledge and protect the role of states in regulating chemicals, he says. This, Igrejas adds, is especially important as EPA resources are stretched thin in the face of federal budget cutting.
“At this point, it makes sense for the federal government to share its work with pace-setting states,” Igrejas says.
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