Chemical Quandary

12/1/2014

STATE LEGISLATURES MAGAZINE | december  2014

Chemicals are essential to our way of life, but who's ensuring their safe use?

By Doug Farquhar

Modern chemicals perform miraculous feats. They boost crop production and kill bad bugs in our drinking water. They make our computers operate, our cell phones work, our iPods play music. They clean our swimming pools and make our clothes brighter. They give us hard and soft plastics and keep our furniture from going up in flames.

But chemicals can carry risks. At certain levels, specific ones can affect our nervous systems and cause developmental disabilities and cancers. Others have been linked to Alzheimer’s and Parkinson’s diseases.

So how do we enjoy the benefits of chemicals and ensure that we are safe?

Regulation Purview Problem

Congress passed the Toxic Substances Control Act in 1976, giving the federal government the responsibility to protect us from harmful chemicals. The Consumer Product Safety Commission was assigned the job of regulating chemicals in consumer products and the U.S. Environmental Protection Agency (EPA) received all the rest. But frustration with the federal government’s ability to do a thorough job has been growing. Illinois Senator Heather Steans (D) puts it simply: “The federal government doesn’t regulate chemicals very well.”

The toxic substances act hasn’t been updated since it was originally passed—the only federal environmental statute that has not been overhauled. The chemical industry has changed since the ’70s, but the regulatory system governing it hasn’t. The industry invests heavily in testing and research to ensure its products are safe. But the federal government has not kept pace. And this, says Cal Dooley, president of the American Chemistry Council, “has eroded the public’s confidence in the safety of chemicals and in the federal government’s regulation in the production and use of them.”

Former EPA Administrator Lisa Jackson agrees the Toxic Substances Control Act is “an inadequate tool for providing the protection against chemical risks that the public rightfully expects. As more chemicals are found in our bodies and the environment, the public is understandably anxious and confused,” she says.

It’s not that Congress hasn’t tried updating the act. It’s been a goal for many for a long time. And again this year, both houses of Congress held hearings on chemical safety reform. But states are growing impatient. As we’ve seen in other policy areas, from the federal government’s inaction comes state action. In 2014 alone, lawmakers in 43 states introduced 537 bills on chemical safety.

States Step In

Most recently, California, Connecticut, Maine, Massachusetts, Minnesota, Oregon, Vermont and Washington have developed comprehensive chemical policies to prioritize and study the chemicals of concern in a systematic way, filling in data where they are missing and restricting the uses of the most threatening chemicals. Another 15 states, includiing Indiana and Michigan, have statutes that regulate certain chemicals of concern individually.

This year, state lawmakers reviewed 43 bills on bisphenol A, 25 bills addressing chemicals in flame retardants, 97 bills on lead hazards and 59 bills on mercury. As of the end of October, 55 bills on chemical safety had become law in 20 states.

California now is regulating chemical flame retardants and the amount of arsenic and lead in glass beads. Connecticut is limiting cadmium in children’s products. Illinois has banned synthetic plastic micro-beads. Minnesota has eliminated formaldehyde. New York now collects unused mercury thermostats rather than allowing them into landfills. And school janitors in Tennessee are encouraged to use certain chemical cleaners only when students and teachers are not present.

But by far, the top four chemicals states have focused on are bisphenols (BPA) in plastic products, cadmium and lead in children’s products and flame retardants in furniture. Half the states have passed laws regulating the use of these chemicals.

Of greatest concern is the use of bisphenol A in babies’ and children’s products, including toys, plastic bottles and pacifiers. Bisphenol A also is found extensively in medical devices, dental sealants, water bottles, the lining of canned foods and drinks and many other products. Studies of the chemical have been less than conclusive, although some suggest the chemical may harm the brain and prostate glands in fetuses, infants and young children. Other studies link it to infertility and breast cancer.

Excess levels of cadmium can cause severe joint and spinal pain, respiratory and lung disease, kidney renal damage and cardiovascular problems. In Japan, excessive cadmium in the diets of some older women has caused “itai-itai”— or “ouch-ouch” disease. Chemicals in flame retardants (used in children’s pajamas and furniture cushions to keep them from burning) have been linked to developmental and reproductive problems. And even a trace of lead in a developing fetus can cause neurological problems.

Is Regulation the Answer?

Not everyone agrees, however, that state regulation is the way to reduce chemical risks. Some question whether legislators have enough information and the requisite knowledge to regulate chemicals at all. “States don’t have the depth of staff to review information,” says Illinois Representative Mike Fortner (R), who teaches chemistry at Northern Illinois University. “EPA statements of risk are much better than state resources.

“The public tends to overreact to environmental hazards, and legislators respond to the public,” he adds, but often “legislators don’t know the difference between parts per million versus billion, nor do they understand bioaccumulation, nor risk assessments. And the resulting bill passed often is more problematic than the original issue.

“I voted against banning lead in toys in the state,” he says. “I feared the Chinese would substitute lead with a more harmful product, which they did—cadmium. Now we have legislation on banning cadmium in children’s products.”

A More Comprehensive Approach

California’s was one of the first legislatures to look into chemical safety. Lawmakers were interested in addressing public and environmental health concerns and supporting the development of safer chemicals. Committees from both chambers explored various chemical policies in other states and the European Union.

The committees’ 2004 report recommended the state adopt a comprehensive chemical safety policy rather than ban single chemicals or adopt other piecemeal approaches to support the design, manufacture and use of safer chemicals. This “green chemistry” policy, the report stated, would boost economic development in California by improving health and environmental quality. It would also require a long-term commitment from California policymakers.

“The report made the state Legislature more aware of chemical concerns,” says Bob Fredenburg, clerk to the California Assembly Committee on Environmental Safety and Toxic Materials. The report led to the passage of the California Green Chemistry Initiative in 2008, which required the state Department of Toxic Substances Control to adopt two sets of regulations.

One, called Green Chemistry Hazard Traits, established a process to evaluate and prioritize chemicals of concern and their alternatives, including gathering data on their level of toxicity, potential for exposing certain vulnerable populations and volume used in commerce. All findings go into the Toxics Information Clearinghouse.

The second set of regulations, Safer Consumer Products, requires manufacturers of widely used products to seek safer alternatives to harmful chemicals, so that California has “the opportunity to lead the way in producing safer versions of goods already in demand around the world.”

Plans Are Ambitious

Maine and Washington also adopted comprehensive regulatory approaches. Maine’s Protect Children’s Health and the Environment from Toxic Chemicals law allows state regulators to collect information about the use of chemicals and prohibit the sale of children’s products that contain “priority chemicals” when safer alternatives are available.

Washington’s law focuses solely on children’s products. It requires the state Department of Health to compile a list of “high concern” chemicals, based on their potential exposure to children and developing fetuses, and to submit a report and policy recommendations to the Legislature. The department does not have the authority to ban or restrict these chemicals, but may impose civil penalties on manufacturers that violate the reporting requirements.

One of the biggest concerns about the law was whether the state health department had the resources to carry out the work, says Washington Representative Eileen Cody (D). “The Washington Department of Health is a small department—it doesn’t have a lot of state money to work on these programs.”

These state approaches are indeed ambitious. Maine now has a list of more than 1,400 chemicals; 49 are listed as high concerns, and five are on the priority list: Bisphenol A, Nonylphenal/Nonylphenal Ethoxylates, cadmium, mercury and arsenic. In Washington, based on testing of more than 200 children’s products, 65 chemicals are listed as a high concern for children. And in California? The Green Chemistry initiative is so complex it took until 2013 just to promulgate the regulations.

But that has not deterred similar programs from being developed in Connecticut, Massachusetts, Minnesota and Vermont. Connecticut’s commissioners of public health and environmental protection are compiling a list of toxic substances and maximum levels to be used in children’s products. Minnesota’s Department of Health is generating a list a chemicals of high concern. Vermont’s law, adopted this year, requires the commissioner of health to develop and review a list of chemicals of high concern every two years.

Federal Efforts

U.S. Representative John Shimkus (R) of Illinois, chairman of the House Environment and the Economy Subcommittee, says that the House of Representatives’ latest attempt to reform chemical safety regulations acknowledges states’ role in managing potentially dangerous chemicals. “In my view, where states have the inherent capability to protect health and the environment, we in Congress should defer to them.”

“Congress must also have a rationale to step in where a state is not constituted to take the steps it needs to achieve that protection,” he says, and that’s exactly what is concerning about the most recent draft legislation in Congress.

 But the Chemicals in Commerce Act discussion draft, championed by Shimkus, includes “onerous preemption language that would handcuff states from acting against harmful chemicals to protect their population,” Massachusetts Senator Michael Moore (D) told Congress earlier this year when he testified before the House Environment and the Economy Subcommittee on behalf of NCSL.

“The act essentially ignores nearly 40 years of state policy in an attempt to provide a one-size-fits-all approach to toxic chemicals regulation. It would essentially eliminate the ability of state policymakers to regulate toxic chemicals by divesting all authority away from states and localities and placing this authority solely with the administrator of the Environmental Protection Agency,” he said.

The Senate is also working on reforming the Toxic Substances Control Act through legislation introduced by Senator David Vitter (R) of Louisiana last summer. Details of the bill are being ironed out in the Environment and Public Works Committee, headed by Senator Barbara Boxer (D) of California. Boxer adamantly opposes a provision that would preempt state laws, referring to it as a “non-starter.”

So, what’s the best approach? Although Representative Fortner has concerns about states becoming involved with chemical policy, he’s also suspicious of the federal government’s approach. He says he would support federal oversight of chemicals, if the EPA had good rules and Congress gave them the resources to enforce them.

“We often have the data,” he says, yet do not understand or know how to use the research to know what chemicals get into humans, how they get into them, who is susceptible and who is vulnerable. “These questions are never answered.”

Until some of those questions are answered, lawmakers are left trying to figure out how best to live with the chemicals we can’t live without.

Doug Farquhar directs the Environmental Health Program at NCSL.

Preserving States’ Rights

Throughout the 113th session of Congress, NCSL has collaborated with congressional staff and interested parties on chemicals-reform legislation that does not infringe on state sovereignty.

In April 2014, State Senator Michael Moore (D) of Massachusetts testified on behalf of NCSL before a U.S. House Energy and Commerce Subcommittee on the proposed Chemicals in Commerce Act (CICA) by subcommittee chairman and U.S. Representative John Shimkus (R) of Illinois. The draft legislation, while attempting to reform the Toxic Substances Control Act, would divest states of the authority to regulate new chemicals by shifting the responsibility solely to the EPA and would preempt existing state laws that regulate toxic chemicals.

Senator Moore stressed that states have a history of working cooperatively with the federal government in environmental regulation and that Congress should not bar states from enacting state laws that complement federal environmental policy. NCSL submitted a letter to the full committee in May opposing CICA for these reasons.

The efforts are guided by NCSL’s long-standing policy on environmental federalism that recognizes the need to preserve and strengthen uniform minimum federal standards for environmental protection while maintaining statutory authority for states to enact standards that are more stringent than the minimum federal standards.

While most agree the toxic substances act should be modernized, there’s no consensus on how it should be done. NCSL staff will continue to work with Congress to provide expertise as the House and Senate develop appropriate statutory language.

Melanie Condon, NCSL

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