With No TSCA Chemical Reform on the Horizon, States Take the Lead

With TSCA reform at the federal level highly unlikely to occur in this election year, the individual states are expected to step up their ongoing battle to protect human health and the environment from chemicals. According to Safer States, "at least 28 state legislatures will consider proposals to address continued concerns about toxic chemicals in consumer products."  This builds on "over 80 chemical safety laws [that] have been passed with an overwhelming margin of bi-partisan support in statehouses across the country" during the last nine years.

Safer States is "a network of diverse environmental health coalitions and organizations in states around the country" and is a part of Safer Chemicals, Healthy Families, a "coalition of groups united by their common concern about chemicals in our homes, places of work, and products we use every day."

The organization has posted what they see as highlights of the 2012 state legislative efforts, as follows:

• Identification and Disclosure of Chemicals Harmful to Children. At least 13 states, including Alaska, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New York, New Jersey, Oregon, Vermont, and Washington will consider policies to identify and ultimately reduce exposures to chemicals of concern, including prioritizing chemicals for state action and requiring manufacturers of consumer products to disclose the chemicals in their products.
• BPA Phase Outs. At least 20 states will consider policy to restrict the use of the hormone-disrupting chemical BPA in infant formula cans, other food packaging, children's products, and receipt paper. Alaska, Alabama, Arizona, Connecticut, Colorado, Georgia, Hawaii, Illinois, Iowa, Kentucky, Massachusetts, Maine, New Hampshire, New York, North Carolina, New Jersey, Tennessee, Virginia, West Virginia and Wisconsin are all states considering such legislation.
• Tris Flame Retardant Phase Outs. At least four state legislatures will introduce policies to phase out the use of the flame retardant chlorinated Tris in children's products. Chlorinated Tris is a flame retardant that was removed from children's pajamas in the 1970s because of concerns over adverse health effects, including cancer, but has reappeared in other children's products. Connecticut, Maryland, New York, and Washington are legislatures considering such a ban. In addition, Alaska, Michigan, New Jersey and New York legislatures will consider policies to reduce exposure to the flame retardant decaBDE.
• Green Cleaning in Schools. Earlier this month, Vermont passed policy requiring manufacturers to only sell environmentally preferable cleaning products to schools. Massachusetts, New Jersey, New York, and North Carolina are considering similar policy.
• Cadmium Bans in Children's Products. At least 5 states will be introducing or have introduced policies to ban the use of cadmium in children's products, including Hawaii, Maryland, Michigan, New York, and Tennessee. Cadmium is linked to cancer and other health effects.
• Other policies. Oregon has introduced policy to require the state to reduce toxics through its procurement process. New York is considering policy to restrict formaldehyde in beauty products. Massachusetts and Georgia are also considering policy to improve the safety of cosmetics. Other states have introduced individual chemical restrictions, such as lindane in Michigan and perchloroethelyene in Vermont.

Ironically, while the chemical industry has indicated that it prefers the reform of TSCA on the federal level rather than a patchwork of state and local laws, the lack of action on TSCA is serving as a catalyst for states and municipalities to create that patchwork in earnest.

The full Safer States press release can be viewed and downloaded as a PDF here.

States Pick Up the Slack - Pass Chemical Laws While Federal TSCA Reform Goes Nowhere

According to an article in the online publication, Sustainable Business News, nine states "passed legislation to protect the public from toxic chemicals this year."  Overall, "18 states have passed over 80 chemical safety laws in the last nine years by an overwhelming margin with broad bipartisan support."  And this state-level dominance of chemical safety laws is expected to continue for the foreseeable future, primarily because the federal government has failed to take action to modernize the 35-year old Toxic Substances Control Act.

It's not from wont of trying.  Senator Lautenberg again introduced a version of his Safe Chemicals Act in 2011, and is holding a series of stakeholder meetings to try to fine-tune the proposal with stakeholder support from industry, NGOs, and academia.  This follows on several other attempts by Democrats in both the House and Senate to update TSCA, so far to no avail despite the public claims by industry to want modernization of the law.

The biggest reason why industry says they would like TSCA reformed is because they don't want to have to deal with the patchwork of state and local laws that are sometimes conflicting and always more susceptible to more local concerns.  But despite the attempts by legislators to address stakeholder input, industry has to date found the bills "unworkable" and "non-starters."  So while nothing happens at the federal level, the states jump in to protect their citizens.

According to the article:

On the state level, there's been bipartisan support for  protecting children's health and the environment from dangerous chemicals. 99% of Democrats and 86% of Republicans supported the policies listed below. 

Actions in various states have included banning BPA in thermal receipt paper, baby bottles, sippy cups, plastic storage and beverage containers, and other products, as well as restrictions and bans on heavy metals like cadmium in children's jewelry and brominated flame retardants in children's products.  Other states have initiated broader programs to identify "priority chemicals of high concern," reduce the use of toxic chemicals, or pass laws to ensure "Kids Safe Products."  A list of actions can be found in the Sustainable Business news article.


More information on state-level action to protect human health and the environment can be found here.

Whether all this state activity will stimulate federal action or not remains to be seen.  As Congress focuses on cutting programs, many of which are health and safety related actions such as those at EPA (which expects to get substantial funding cuts), the states are forced to spend even more money doing what many of them feel is a federal role.  On the other hand, as more and more states put pressures on industry, perhaps there will be more impetus for industry to recommend TSCA reform bills that they can support.

States Offer Their Reaction to Lautenberg's Safe Chemical Act

Last week Senator Frank Lautenberg introduced the 2011 version of his Safe Chemicals Act.  I have already given an introduction of the bill, the NGO reaction and Industry reaction.  Today we take a look at the reaction from the states.  On Wednesday the heads of the environmental protection agencies of several states issued a group press release commending Lautenberg "for introducing comprehensive legislation that reforms the 35-year-old Toxic Substances Control Act (TSCA)."  They represent the states of California, Illinois, Oregon, Maryland, Minnesota, and Washington.

Overall, the states were very supportive...and in fact, very demanding...of a federal level modernization of TSCA.  According to Ted Sturdevant, Director of the Washington State Department of Ecology:

"We need a fix at the federal level so that we don’t have to do this in the states. States have limited resources and lack the tools of federal agencies to drive a national program. However, until we have a national solution, we will continue to act on chemical safety concerns in our states."

Like Washington State, California has been trying to deal with toxic chemical issues in the absence of an adequate federal law.  According to Linda Adams, Secretary of California EPA:

“In the absence of a unifying approach, interest groups and policy makers have been attempting to take these issues on one-by-one. We need a coordinated, comprehensive national strategy.  As we work toward these national reforms, California will continue to move ahead with its comprehensive green chemistry policy.”

Regulators in other states chimed in with similar stories.  All of them support a modernized TSCA that would, among other things:

• Give EPA the authority to establish chemical safety standards and to take risk management actions when chemicals fail to meet those standards. 
• Shift the burden to industry to demonstrate that chemicals meet safety standards.
• Make available to the public more data and information now claimed as confidential.
• Permit the sharing of confidential information with state regulators.
• Provide for an enhanced state role in implementing the federal law and improved state/federal coordination.

More information on states' reaction to the Lautenberg bill can be found in the combined press release (e.g., this one from the State of Maryland).

With No Federal Action, Wal-Mart Takes the Lead in Banning Chemicals - Is Retail Regulation the Future?

Is retail regulation the wave of the future?  At this site I have talked a lot about the attempts to reform the Toxic Substances Control Act (TSCA).  So far TSCA reform efforts have failed to produce any federal action to modernize the now 35-year old law.  But now, into this gap in federal-level regulation have come the "retail regulators."  Retail regulation is when influential retail stores like Wal-Mart, Toys-R-Us and Sears make unilateral buying decisions that could effectively ban chemicals of concern.  Call it The Wal-Mart Factor.

A recent article by Lyndsey Layton in the Washington Post discusses how Wal-Mart is "stepping ahead of federal regulators and using its muscle as the world's largest retailer to move away from a class of chemicals researchers say endanger human health and the environment."  Those chemicals, polybrominated diphenyl ethers (PBDEs), have been used as flame retardants in a wide range of consumer products, including computers, furniture, and toys.  With a worldwide buying power rivaling many national economies, when Wal-Mart speaks, manufacturers listen.  And since manufacturers and formulators aren't likely to make one product for Wal-Mart and another version of the same product for other distributors, chemical bans by Wal-Mart have the ripple effect of eliminating chemicals from products sold elsewhere.

As the article points out, this is not the first foray into retail regulation by big box stores.  Toys R Us, Sears, Kmart, Whole Foods, and others have started telling suppliers that products containing chemicals such as BPA, PVC, PBDEs and others will no longer be accepted.  This is caused many suppliers to reformulate their products to replace components of toxicological concern with those that are less hazardous.  The result, in effect, is a market-based ban on certain chemicals.  Though it should be clear that the reason Wal-Mart and the other retailers have made the decision to ban is because state legislatures have been taking action to limit chemicals in which health and safety studies have raised concerns. 

Since unilateral decisions by retailers and varied state-level action could create a patchwork of "regulation" across the country, this would seem to be more impetus for moving forward with federal-level action.  Such federal action should include a modernized and rational TSCA reform legislation that encourages both innovation by retailers and manufacturers and protection of human health and the environment.

30 States Introduce Chemical Restriction Laws as TSCA Chemical Reform Lies Dormant

With TSCA reform activities essentially dormant (and perhaps dead), a total of 30 separate US states have introduced chemical reform legislation.  According to the advocacy NGO Safer Chemicals, Healthy Families, "on Wednesday, January 19, legislators and advocates in thirty states across the country and the District of Columbia will announce legislation aimed at protecting children and families from harmful chemicals."  They also claim that "despite well-funded opposition from the chemical industry, 18 state legislatures have already passed 71 chemical safety laws in the last eight years by an overwhelming, bipartisan margin – with more to come this year."

Last year both the House and Senate introduced "Safe Chemical" bills in an attempt to modernize the 34-year old Toxic Substances Control Act.  While on the House side there were several stakeholder meetings held to get input so that the bills could be fine-tuned, no substantive action occurred in committee in an effort to get votes on the bills.  Which means they must be reintroduced in this new Congress.  With the Republicans gaining control in the House and narrowing the gap in the Senate, along with the continuing lagging (though improving) economy, it is unclear whether any federal level TSCA reform can get passed this year or next.

With that in mind NGOs are shifting their efforts to encouraging state level action.  According to the NGO's press release:

"The American public is demanding new chemical safety laws, and state elected officials – both Republicans and Democrats – are responding," said Andy Igrejas, Campaign Director of the Safer Chemicals, Healthy Families coalition. "At some point Congress will wake up and realize it is better for industry and public safety to make these changes at the federal level, as well." 

Planned legislation includes comprehensive state laws in nine states, phase outs of the plasticizer BPA in at least 17 states, calls for federal action in at least 11 states, bans of cadmium in childrens products, and exposure reductions in at least three states to a brominated flame retardant.  More information is available on the SCHF web site.

Note: US state graphic from SCHF.

With Uncertainty About the Future of TSCA Chemical Reform in Congress , States Increase Regulatory Action

I have spent a lot of time on this site talking about various aspects of the attempts to reform/update/modernize the 34-year old Toxic Substances Control Act.  One aspect I've mentioned several times is the work of various states to "fill in the gaps" of the federal level law.  A new report shows that states have stepped up their activity in light of the lack of substantive movement on TSCA reform legislation in the US Congress.

The report, by two health advocacy coalitions - SAFER States and Safer Chemicals Healthy Families - is called "Healthy States" and documents that "states aren’t waiting for Congress to take action on toxic chemicals—they are taking matters into their own hands."

According to the report, "state restrictions on toxic chemicals are on the rise, and will probably continue to increase until Congress overhauls failing federal legislation."  Among other activities, the report highlights:

• In the last eight years, eighteen states have passed 71 chemical safety laws.
• The pace of state policy making on chemicals has more than tripled in eight years.
• Sixty-six laws banned bisphenol A (BPA) in baby and toddler products (with 98% support), phased out toxic flame retardants (PBDEs) in home products (93%), reduced children’s exposure from common products containing lead (88%) and cadmium (86%), and promoted green cleaning.
• State legislators strongly supported recent state laws that create new programs for broad regulation of toxic chemicals. This includes comprehensive laws passed in California, Maine, Minnesota and Washington state.

According to SAFER States, "while Washington DC is stuck in chemical industry politics, the states are growing frustrated and taking matters into their own hands -- passing laws which will help to temper the public outcry until a day comes when we are comfortable with the chemicals that are infiltrating every part of our lives."

The chemical industry has in the past supported the concept (though not necessarily the details) of federal-level TSCA modernization, in large part because they don't want the kind of patchwork regulatory quilt in which state-level regulations would result.  With the 2010 Safe Chemicals Act bills left to die without action, new versions of the bills will need to be introduced in the next Congress.  The change of majority party in the House and the subsequent differences in viewpoint between many key incoming House members and the opposite majority party in the Senate have created some uncertainty about the path forward.  What this report shows is that the states will continue, and likely increase, their state-level action in an effort to 1) deal with the lack of federal-level action in Congress, and 2) stimulate federal-level action in Congress.

The report can be downloaded on either of the two advocacy sites linked above.  A PDF is available here.

States push for TSCA chemical control law reform

ECOS, the Environmental Council of the States, held its annual meeting last week and among other activities passed a resolution calling for reform of the 34-year old Toxic Substances Control Act.  ECOS is an organization of state environmental agency leaders.

According to the resolution, which can be downloaded here, ECOS supports congressional action that would place the onus on the chemical industry to prove their chemicals are safe, to give EPA sufficient authority to ensure that chemicals are safe, including the ability to do so in a timely fashion, to provide EPA with a mechanism by which they can share confidential business information they receive with the states, to require safer alternatives (substitutes), and authorize EPA to take expedited action when a chemical presents "imminent or substantial endangerment or is persistent, bioaccumulative and toxic (or very persistent and very bioaccumulative whether or not it is toxic), etc.

The states have been very active in pushing for federal legislation because otherwise they would have to undertake state-level legislation, which not only is a burden to the states but a burden to industry who could be faced with complying with 50+ different state regulations.

Given the current lack of federal action likely before the mid-term elections, the states will have to wait until next year for TSCA reform on a national level.

With TSCA Chemical Reform Likely to be Pushed Off Until Next Year - What Happens Now?

TSCA reform is dead.  Long live TSCA reform.

Okay, maybe too melodramatic.  But it would seem that the chances of passing a TSCA bill anytime in this session of Congress are pretty much done.  So with that in mind, what's next?  The answer of course is nobody really knows, and we aren't likely to know until after we see the outcome of the elections in November.

But we can make some guesses.  To begin with, we can assume that some sort of bill will be reintroduced in the next Congress, probably mid to late next year (2012 is a presidential election year).

First off, it is highly likely that the final reintroduced bills will shift toward a less data intensive system.  By that I mean that there will not likely be a requirement for all existing chemicals to have a complete data set produced and submitted to EPA in the fashion of REACH in Europe.  Even with the tiered approach (i.e., chemicals of highest tonnages are required to register first, smaller tonnages later), the REACH system has been a huge burden on industry.  Massive numbers of man-hours, costs, and coordination among sometimes hundreds of competitors to produce data dossiers have been needed, plus several years of activity, to get to a point where companies are struggling just to pass the initial completeness checks.  And then only 5% of those dossiers are required to be reviewed by the chemicals agency.  That's a lot of work to fill a lot of file cabinets.  But does it make us safer?  Not in the short run at least because it will take years of review even for those 5% to see if there are any risks.

Secondly, look for lots of action in the states. There are two reasons why industry has been publicly in favor of TSCA reform.  The first is simply public relations.  But the second is because they understand that TSCA reform is needed to avoid the patchwork of 50 sets of state regulations.  In the past industry had to worry about only a few states "going proactive," (e.g., California), but now there are many states who have been actively trying to ban specific chemicals, put restrictions on the use of chemicals like phthalates in baby bottles, and banning plastic bags.  And that is no accident.  Advocacy groups have actively worked with states to develop state-level regulations in an effort to push the federal-level process along.

Thirdly, look for Democrats (assuming they maintain control of both houses of Congress) to figure out how TSCA reform will help create jobs.  With the country still in the throes of a recession, and with predictions that it might be a while before we get the unemployment rate down, jobs are on everyone's mind.  The code word "jobs" was dropped by representatives of both parties in the House hearing held at the end of last month.  And industry representatives have been quoted saying that the new law cannot inhibit innovation or cost the industry jobs.  So if lawmakers want industry input they have to include the "jobs" code words in their language as they move forward.

Finally, this is an opportunity.  While no one could credibly argue that the process of TSCA reform is moving too fast (it took years of promises before the bills were introduced), the time between now and the reintroduction can be used wisely by all stakeholders to ensure the best combination of protection of human health and the environment with a workable plan that encourages job creation, green chemistry, and innovation.  Now is the time for everyone to put in a good faith effort.  I'm just not sure everyone is ready to do that.

State of Maine Adopts Regulations to Protect Public from Chemicals

As noted previously, the individual states are acting in the absence of a new federal level reform to the Toxic Substances Control Act (TSCA). This past week the Maine Board of Environmental Protection unanimously adopted the final regulations implementing a chemical policy law enacted in 2008 by the Maine Legislature.

Specifically, the new rules are designed to protect the public, especially children, from toxic chemicals in consumer products and toys. The 2008 law required the Department of Environmental Protection to create and regularly update a database of chemicals that they've determined to be unsafe. In compliance with that requirement, in July of 2009 the DEP released a list identifying 1,300 chemicals.

More information can be found here.

States, Regions, and Federals - The Conflicting Interests of TSCA Chemical Reform

The perceived lack of teeth in the Toxic Substances Control Act (TSCA) has led many US states to initiate their own state-level actions to regulate what they call toxic chemicals. Recently I noted that 13 states (no, not just the original 13 colonies) had released "a set of principles designed to ensure that the debate over reforming the nation’s outdated chemical policy stays focused on protecting public health and the environment."

Regional influences are also getting into the act. The Great Lakes Binational Toxics Strategy seeks to address chemicals of concern to the Great Lakes and includes the surrounding US states and Canadian provinces.

And of course the federal Environmental Protection Agency has issued its "essential principles" for TSCA reform.

All of this virtually guarantees that a federal level modernization of TSCA will happen soon. While Senator Lautenberg could be introducing his bill any day now, introducing it doesn't mean passage into law, as can be attested by the fact that this would be the 3rd time he has introduced legislation. The key difference this time, however, is that the industry is behind "modernization." On Tuesday, for example, a new "Michigan Coalition for Chemical Safety" was formed in which "business, manufacturing, agriculture and bioscience leaders" look for a national level reform of TSCA. Not surprisingly, Michigan was one of the 13 states mentioned above. The Coalition is actually a Michigan Chapter of the national Coalition for Chemical Safety, an industry association whose mission is to "create a comprehensive overhaul of the TSCA that protects public safety, promotes industry innovation and preserves jobs." [Interestingly, Richard Denison of the Environmental Defense Fund has had a running conversation on his blog about how the CCS is an "astroturf" group more interested in protecting their own interests than public safety.]

In any case, industry would much prefer that any changes be made at the national level to TSCA rather than a hodgepodge of state level actions that make it more difficult to comply. Which is why the major industry trade associations have been working with Senate and House members to lobby for what they see is a rational path forward. Meanwhile, health and environmental advocacy groups have been doing the same. And recently the debate seems to have finally been discovered in the blogosphere.

This last point is dangerous, in my opinion. Like the climate change debate, while the science is pretty overwhelming, the blogosphere tends to thrive on polarization. I'll have more about this in future posts.

13 US States Issue Recommendations for TSCA Chemical Control Reform

Recently the House held hearings on reform of the over 30-year old Toxic Substances Control Act (TSCA), and yesterday the Senate followed suit with its own hearing. Yesterday also was important because thirteen US states released "a set of principles designed to ensure that the debate over reforming the nation’s outdated chemical policy stays focused on protecting public health and the environment.:

“Current federal chemical regulations fail to adequately protect the nation’s citizens and environment from toxic chemicals and unsafe products,” said David Littell, Commissioner of the Maine Department of Environmental Protection. “The effects of exposure to toxic chemicals on human health, the environment, and the economy are enormous and often avoidable.”

Not surprisingly, California is one of the states taking action. In addition, Maine and Washington are taking state level action. The other states contributing to the principles are Connecticut, Illinois, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Oregon, and Vermont.

The eight recommendations listed are:

1) Require Chemical Data Reporting

2) Demonstrate Chemicals and Products are Safe

3) Prioritize Chemicals of Concern

4) Protect the Most Vulnerable

5) Promote Safer Chemicals and Products

6) Address Emerging Contaminants

7) Strengthen Federal Law & Preserve States' Rights

8) Fund State Programs

A press release summarizing these recommendation is available on the Maine DEP web site. I'll continue to monitor developments both on the state and federal levels. See here for the opening remarks of yesterday's Senate hearing. I'll post summaries of the remarks of all the witnesses in the following days as well as analysis of what all these hearings mean for the modernization of TSCA.