09
Jun
Congress Passes Toxic Chemical Reforms, but Limits More Protective State Laws
(Beyond Pesticides, June 9, 2016) The U.S. Congress passed a bill Tuesday to reform the Toxic Substances Control Act (TSCA) of 1976, the national law that regulates industrial chemicals, but in the process took away the right of state governments to adopt more stringent standards than the federal government. A Senate voice vote late Tuesday passed the bill, following a House vote in late May. The bill will now go to President Obama’s desk for signature or veto, but it is likely that he will sign it into law. Congress has taken steps to address the vast shortcomings of the law to protect human health and safety, and  in the process has created opportunities for serious delays and restrictions on states’ ability to enact their own toxic chemical regulations.  As the bill heads to President Obama, environmental advocates are concerned that they will lose an important tool in the fight for public protections —with the adoption of federal legislation that will  diminish the right of states and communities to establish protective laws, regulations, and standards in the face of involuntary toxic chemical exposure.
Under  current TSCA law, around 64,000 chemicals are not subject to environmental testing or regulation by the Environmental Protection Agency (EPA). In absence of federal reform over the past 40 years, many states, including Washington, Connecticut, New Hampshire, Minnesota, New York and Vermont, have stepped up to fill the void, taking actions, such as setting exposure limits lower than federal levels and enacting bans on dangerous toxic products like lead-weighted wheels and flame retardant mattresses.
The reform will change existing TSCA in a number of ways, such as:
- establish a health-based safety standard;
- require the EPA to assess the risk of existing chemicals under “judicially enforceable deadlines,” without consideration of cost. This process will include identification of substances on the market, designation of low and high priorities, risk evaluation of high-priority substances, and restrictions for those that  present an unreasonable risk;
- strike the existing statute’s mandate that the EPA implement “least burdensome” regulatory requirements;
- mandate that the EPA make “an affirmative safety finding” before allowing a new substance on the market, under a 90-day review period (which may be extended to 180 days);
- increases the EPA’s authority to order testing, with a requirement to “reduce and replace animal testing where scientifically reliable alternatives exist”;
- trigger an EPA review of all past confidential business information (CBI) claims, and require re-substantiation of approved claims after ten years;
- limit state authority to restrict substances that are undergoing EPA review, have been found by the agency not to pose unreasonable risk, or are subject to federal risk management, unless they seek out a waiver. States’ authority to require reporting and monitoring are preserved, and chemical restrictions enacted prior to 22 April 2016 are ‘grandfathered’ in;
- call for identification and protection of most vulnerable populations;
- require science-based decisions, founded on weight of evidence (WoE); and
- collect fees on  new and existing chemicals that  go directly to the EPA.
While the final bill looks better in some ways than where it started, it does not look good on one of the issues that matters most — state preemption. In addition, the legislation embraces a risk assessment approach to regulating toxic chemicals, similar to the regulation of pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which has proven to allow the unnecessary use of toxic chemicals under a “health-based safety standard” for which there are safer less-toxic practices and products. Because of the limitations of risk assessment, which is often politicized or subject to political pressure, it is critical that FIFRA does not preempt state or local authority —although the legislatures of 43 states have stripped their local political subdivisions of the authority to adopt more stringent standards after heavy lobbying from the chemical industry in the 1990’s. States have on occasion  used this authority when they determine that federal government action is inadequately protective, as Maryland and Connecticut recently did in restricting the sale of bee-toxic neonicotinoid pesticides and other states consider similar action.
State authorities, public health groups, and environmental advocates alike have cause for concern. Lobbying for  preemption laws that strip states and localities of their authority to restrict toxic chemical use is a tried and true practice of the chemical industry. Arguing under the guise of coherence and a unified national approach, chemical industry leaders would prefer weaker, uniform standards that fail to account for localized needs and sensitive populations. As written, the bill relies on EPA to protect public health, an obligation that the agency continually falls short on, while simultaneously making it more difficult for states to go above and beyond EPA standards. Meanwhile, extreme legislators and public figures, including presidential hopeful Donald Trump, have called for the elimination of EPA, raising questions about the agency’s longevity as a regulatory entity able to protect citizens from the harms associated with toxic chemicals. If the reformed bill is signed into law by President Obama, state authority to act and protect beyond the federal scope would be undermined.
Beyond Pesticides has maintained that it is essential to uphold the basic principle that states and localities have the authority to adopt more restrictive standards than the federal government. In fact, because federal pesticide and toxic laws have upheld the right of states to exceed federal standards for pesticide use, stronger federal law has resulted over time. Pesticides, such as DDT, DBCB, chlordane, EDB, and others were first banned by states, followed by federal action.
In the face of weak federal and state laws, even in states that preempt local authority to restrict toxic chemical use in public spaces and private property, you can work with your local government to adopt an ordinance that stops local government use of toxic chemicals on all public property, land and buildings. See Beyond Pesticides’ Tools for Change on how to get started with a local campaign, contact us at [email protected], or call 202-543-5450.
Source: Politico, Chemical Watch
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
