Preserve, Don't Preempt, State Leadership on Toxic Chemicals
The public has grown increasingly concerned about the safety of everyday products. But our federal chemical safety system is badly broken. That’s why states are acting (for more information on state action visit www.saferstates.org). Nearly twenty states have passed more than seventy chemical safety laws in the last decade. State chemical regulation has helped drive federal reform efforts.
Finally, there’s a bipartisan consensus in Congress to fix the Toxic Substances Control Act of 1976 (TSCA), which has handcuffed the U.S. EPA from ending the use of dangerous chemicals like asbestos or even requiring health and safety testing.
Yet, the Chemical Safety Improvement Act (CSIA) arrived with fatal flaws (see www.saferchemicals.org, for a description of needed improvements) when introduced this year by Senator David Vitter (R-LA) with support from the late Senator Frank Lautenberg (D-NJ).
Unfortunately, the CSIA as drafted would create a perfect storm for continued inaction on toxic chemicals, combining endless federal process delays with early state preemption. Under CSIA, states would be prohibited from restricting chemical use under three scenarios.
New state restrictions would be preempted when “high priority” chemicals are named and scheduled by EPA for a safety determination. There are no deadlines for safety decisions. So state preemption could persist for many years before EPA acts on these chemicals, if ever.
States would also be preempted as soon as “low priority” chemicals are designated by EPA. The bill makes it too easy to call something “low priority.” And Governors can petition EPA to add chemicals to the low priority list. When a hostile EPA or Governor runs up that list, “low priority” chemicals will be permanently off limits to state regulation, no matter how dangerous.
Finally, existing state restrictions on chemicals would be overturned once EPA completes a safety determination under CSIA. This could jeopardize state bans on lead, cadmium, mercury, PBDEs (flame retardants), phthalates, BPA and other toxic chemicals, if EPA allowed the banned uses of those chemicals back onto the market.
On the positive side, CSIA preserves a clear state role to require reporting or other information on chemicals without fear of preemption. This should preserve state laws in Maine and Washington that require product makers to disclose chemical use, in California to require warnings of exposure, and in Massachusetts to require facility plans for toxics use reduction, among others. The bill sponsor has pledged to make this carve-out even more explicit to clarify this intent.
We need TSCA reform because states can’t afford to go it alone and not enough states will act to provide nationwide protection. But, assuming the many other flaws of CSIA are also fixed, Congress needs to strike the right balance between federal and state authority to ensure the safety of chemicals in products.
Going forward, CSIA should be amended to preserve the state leadership role whenever EPA fails to act. In my opinion, these changes should include:
- States remain free to restrict chemical uses until the final effective date of a federal restriction, or an EPA safety determination completely exonerates the chemical, after all challenges have been exhausted – and with preemption only allowed then for the chemical uses within the scope of EPA’s safety assessment;
- States remain free to regulate “low priority” chemicals; if they are truly low priority, states won’t be motivated to take them on. Better yet, eliminate the time-wasting “low priority” category all together; and
- No “backsliding” is allowed from existing state restrictions (or voluntary phase-out agreements), i.e. EPA cannot allow banned uses of chemicals already removed from the market place to make a toxic comeback.
States have long been the laboratories of democracy. And across virtually every other environmental program, federal law establishes a floor that states are free to build on. When it comes to fixing our broken federal chemical safety system, let’s not handcuff the states on a simplistic hope that EPA will take of the problem someday, maybe.
Protecting public health and the environment from dangerous chemicals requires a healthy partnership between the states and federal government. Real reform would ensure a fair balance between state and federal authority. The industry-backed CSIA proposes phony reform that unduly chills the states without even ensuring federal action.
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