Leading chemical reformers dispute state versus federal control of chemical policies, as a key toxic substance reform bill aims to increase the Environmental Protection Agency’s (EPA) power to determine nationwide chemical regulations. The TSCA Modernization Act of 2015 passed the Senate with modifications last December and has returned to the House for final approval.
In a statement after the House approved the bill last June, bill author Illinois Rep. John Shimkus said that increased EPA power to determine whether chemicals can be used in products would promote both consistency and efficiency.
“We think this system sets a new standard for quality regulation. Of course, we want to be protected from harm. But we do not want needless, expensive regulation,” said Shimkus in his statement. “Consumers want safe choices, not no choice at all.”
The original Toxic Substance Control Act enacted in 1976 granted the Environmental Protection Agency a limited measure of control over chemical substances, requiring testing and monitoring of production and importation. Shimkus holds that reform would be economically expedient, easing market difficulties for national-level manufacturers that would otherwise struggle to comply with inconsistent chemical regulations from state to state. At the same time, the act preserves state-level authority to take action against chemicals, as long as they don’t interfere with federal actions.
When the original bill passed in the house last June, it received near-unanimous support with the exception of California Rep. Tom McClintock. In an official statement on his website, McClintock expressed his belief that the TSCA Modernization Act of 2015 is a “well-intentioned bill,” but would not prove effective in making the stringency of chemical regulations consistent from state to state. McClintock added that the proposed bill “greatly increases the burdens on low-regulatory states without easing the burdens on high-regulatory states.”
A December press release by the coalition Safer Chemicals, Healthy Families listed problematic parts of the reform bill, including the fact that “[s]tates will still be blocked from taking action while EPA studies a chemical, potentially delaying urgent public health interventions.” In a Feb. 1 letter to lawmakers, the coalition led groups from 18 different states to propose a combination of the TSCA Modernization Act of 2015 with the Frank R. Lautenberg Chemical Safety for the 21st Century Act in an effort to catalyze chemical reform action in “a Washington frequently paralyzed by gridlock and litigation.”
The letter also points to the importance of state power to make decisions about chemicals, holding that “[t]he preservation of state authority in a reformed TSCA is vital to ensure that the public is protected and that both the federal government and regulated industry are held accountable.”
A Preemptive Strike
A key point in the TSCA reform debate has been preemption—the power of federal chemical laws to supersede those that a specific state has set in place. The federal process for chemical law reform can be drawn out and arduous. Dr. Mui Kultonov of the Environmental Chemistry Lab (ECL) in Pasadena explains that it can take years for the EPA to change chemical methods and policies, as the agency must evaluate assess input from numerous U.S. chemical industry constituents.
While this process leads to universal restrictions of specific chemicals across the country, the legislative waiting game can leave potentially dangerous chemicals out in the commercial market, preventing action to preserve consumer health and safety. On the other hand, a lack of federal preemptive authority leaves much of the power to ban chemical compounds in the hands of the individual states. While some states might use this freedom to aggressively pursue toxic substance reform, others show a relative lack in regulation stringency. In other words, a lack of proper balance in state and federal regulative power can foster a weak sense of accountability for chemical safety on either side.
Attorneys General from twelve states, including California, sent a Jan. 19 letter to various congressional legislators in environment and commerce committees, calling for eight different bill improvements to streamline the chemical legislation process. The letter warns that if the EPA is given preemptive power before taking final action on a specific chemical, state chemical legislators can be left in limbo, unable to take action as chemicals await a federal verdict.
Furthermore, the Attorneys General asked for a balance of state and federal power that would preserve state ability to impose stricter standards than the EPA outlines, as long as such regulations aren’t a hassle to commercial industry. Number six of the letter’s seven requests to key environmental legislators proposes that “[s]tates should be able to obtain a waiver to adopt requirements that are more protective than EPA’s if the requirements do not unduly burden interstate commerce and do not make it impossible to comply with both state and federal law.”
In addition, the letter calls for the “grandfathering” of a number of successful state programs established prior to August of last year, meaning that federal law could not interfere with the initiative of preexisting state legislation. The letter made the case for many longstanding state programs that have proven to be energetic and successful, citing the example of California’s Safe Drinking Water and Toxics Enforcement Act of 1986.
California’s Chemical Reform
California has consistently been a trailblazer for chemical reform, with the state-level California Environmental Protection Agency (CalEPA) touting its record of “creating and implementing some of the most progressive environmental policies in America.” Consumer Product Safety Commission (CPSC) Deputy Director Patty Davis named California as a key driving force in process of improving product safety.
“California is a leader in a lot of the consumer safety rules,” Davis said.
California must comply with the minimum regulations and policies set by the EPA, but is free to set stricter standards, Kultonov explains, pointing out that the ECL holds itself to high chemical testing standards in order to produce defensible chemical research.
“We do follow the method that’s been published, but we also develop our own standard operational procedures,” said Kultonov. “We have the flexibility to make changes to make sure the data quality is good.”
A research function of California’s Department of Toxic Substance Control (DTSC), the ECL has recently channeled its vision of seeking “green chemistry alternatives” into the department’s Safer Consumer Products program. The ECL site in Berkeley is focusing on identifying Chemicals of Emerging Concern (“CECs”) found in everyday products, such as flame retardants, Kultonov says.
The DTSC Safer Consumer Products program became effective late 2013, with the program’s goals outlined to reduce the presence of toxic chemicals in consumer items, create new job and business opportunities in the chemical safety industry and simplify manufacturer and simplify the process of understanding chemicals and how to properly deal with them.
DTSC’s 2014-2018 Strategic Plan outlines objectives such as providing data on SCP regulations and information on the traits of hazardous chemicals found in consumer products. In addition, SCP is working toward ensuring that one dangerous chemical in a product is not merely replaced by another that poses an equal threat.
Chemical Safety for Consumers
On average, Americans spend 44 minutes per day “purchasing goods and services,” according to a 2015 survey by the Bureau of Labor Statistics. It’s more difficult to determine just how aware American consumers are about what kinds of chemicals their products contain.
The United States chemical industry comprises more than 70,000 chemical products, according to a report posted by commerce.gov. Chemical compounds are ubiquitous in the everyday products Americans use, from the chemicals in the kitchen table, to children’s toys or makeup. California’s Department of Toxic Substance Control (DTSC) reports that the average consumer is exposed to 100 chemicals per day.
Not all chemicals threaten human health. But with a proliferation of chemicals available in the marketplace, federal agencies and state departments continue to build a working knowledge of the chemical combinations in the products on our store shelves.
Programs on both the state and federal level seek to regulate, research and provide educational research to Americans. While federal agencies such as the CPSC and the Environmental Protection Agency can impose nationwide recalls and bans, inconsistent regulation standards between states leave a varying amount of momentum for chemical reform.