States Struggle to Update Toxic Chemical Regulation

The burden to investigate many chemicals that could endanger human health has fallen to states, which have enacted a patchwork of regulations that environmentalists, policymakers and industry leaders all consider inadequate.
by , | December 5, 2011

By Jim Malewitz, Stateline Staff Writer

In Commencement Bay, a slice of Puget Sound just outside Tacoma, Washington, environmental officials haven’t found it easy to purge the toxic remnants of more than a century of chemical-belching industry. Washington State and the City of Tacoma have spent almost $100 million trying to clean up pollutants discharged by the lumberyards and processing plants that once thrived along the waterfront.

The efforts have made progress. Recent studies have shown improved fish life along with a decrease in levels of such toxic metals as mercury, arsenic and lead.

But that research has also shown an increase in levels of another group of other troublesome chemicals common in consumer product packaging and even children’s toys: plasticizers called phthalates that enter the bay through stormwater runoff. The chemicals are considered endocrine disruptors, meaning that they may cause birth defects or developmental problems in animals and people, including in rare cases the feminization of males.

With hopes of decreasing such potential dangers, Washington State has passed some of the most comprehensive chemical regulations in the country, including rules that classify 66 chemicals as “of high risk to children.” Companies are required to disclose whether the chemicals are in their products. But identifying and eliminating such toxic substances from everyday products is a tall, if not impossible order for a resource-strapped state.

“When [toxic] chemicals come from a pipe or a smokestack, we have the tools and the know-how to do our job,” Ted Sturdevant, director of Washington’s Department of Ecology, said last month at a legislative hearing before Congress. “But when they come from ubiquitous products like the plastic casing of a television, or the foam in our furniture, we haven’t had the tools or the know-how to do our job.”

States across the country are trying to bear the burden left by what many people – from environmental health advocates to chemical manufacturers – have described as a gaping hole in federal law. The uneven nature of state regulation leaves virtually no one satisfied.

Advocates of change now hope the increased awareness in state legislatures will translate into a sense of urgency in Congress, as it considers the latest attempt to overhaul the 35-year-old and never-updated Toxic Chemicals Safety Act.

Changing threats

Much has changed in chemical manufacturing since 1976, when Congress passed the Toxic Chemicals Safety Act, and science continues to add volumes of new information about chemical hazards every year. Charlotte Brody, of the BlueGreen Alliance, a coalition of labor unions and environmental groups, cites the much-evolved understanding of Agent Orange, the code name for the herbicide the U.S. dumped on enemy forests during the Vietnam War.

“Those who had been exposed to Agent Orange were informed that the skin rash, chloracne, was the only problem they would have from their exposure,” Brody testified at the November hearing. “That’s what the science told us then. Now Vietnam veterans who were exposed to Agent Orange can be compensated for one kind of leukemia, two kinds of lymphoma and four other kinds of cancer as well as diabetes, a type of heart disease and Parkinson’s Disease.”

The US Environmental Protection Agency banned the use of Agent Orange in 1979 after a number of mothers in Oregon, where the chemical was also heavily used, had stillbirths. But for hazardous chemicals with less dramatic and immediate effects, EPA has lacked the tools to take action.

Inside the bodies of Americans are more than 212 industrial chemicals, including at least six known carcinogens, according to testing by the Centers for Disease Control and Prevention. But few of those have been regulated at any level. Out of some 80,000 chemicals inventoried under the 1976 federal law, EPA has fully reviewed only 200, reports the Government Accountability Office, which has called the act a “high risk area of the law.” An EPA spokesperson told Stateline that “the 1976 Toxic Substances Control Act has fallen behind the industry it’s supposed to regulate.”

Unlike in European Union countries, US manufacturers are not required to demonstrate that their chemicals are safe. The federal government still bears most of the burden of proof in studying whether the substances are harmful. That has led states to try to address the problem.

Patchwork of policies

In the past decade, at least 18 states have adopted more than 71 chemical policies – largely with bipartisan support. The policies range from compiling comprehensive lists of hazardous chemicals, as in Washington, California, Maine and Minnesota, to more piecemeal prohibition of chemicals used in manufacturing. In October, for instance, California became one of 11 states to ban the use of bisphenol A – a chemical commonly known as BPA that is thought to inhibit children’s development – from use in infant feeding containers. New York recently became the first state to prohibit manufacturers from using a toxic flame retardant called “chlorinated Tris” in children’s goods.

But state environmental officials say such regulations are burdensome to enact, because, like EPA, state agencies have trouble compiling necessary information on each chemical. In Washington State, Sturdevant says “it’s a lot of work for a lot of folks” to research chemical hazards – a process that can take years for just one chemical.

Dan Wyant, director of the Michigan Department of Environmental Quality, agrees. “States do not have the resources to develop 50 individual state chemical management plans across the country,” he said in a release calling for federal reform.

Furthermore, uneven state-by-state rules can make regulating large, complex bodies of water, such the Great Lakes, especially difficult. Even if some states prove able to limit the toxic chemicals that get into the waters, those same substances may still turn up nearby, coming from states with less strict oversight. Some of the most worrisome chemicals in these waters, state environmental officials say, are bioaccumulative toxics, or PBTs – those that are absorbed by organisms and transferred up the food chain.

The inconsistency of policing substances such as PBTs has led many in the chemical industry to call for more federal oversight. One federal policy would be easier to navigate than a “complex maze of regulations across the country,” says Robert Matthews, who represents the Consumer Specialty Products Association.

New federal legislation

Advocates of change hope that increased awareness will translate into congressional action. In April, Senator Frank Lautenberg, a New Jersey Democrat who has long pushed for an update to the TCSA, introduced his latest attempt, the Safe Chemicals Act of 2011. The bill would mandate companies to submit comprehensive testing data on every chemical they use, and it would require EPA to prioritize chemicals of greatest risk, organizing information in a public database.

The bill has drawn the broad support of environmental health groups and state officials, and Lautenberg is hoping to recruit bipartisan support after having held a series of meetings on it with Senator James Inhofe, a Republican from Oklahoma.

But the Safe Chemicals Act has garnered criticism from chemical industry representatives, who say it would be too burdensome to manufacturers. At the November hearing, Cal Dooley, president and CEO of the American Chemistry Council, said the bill’s safety standard and minimum data requirements would be “virtually impossible to meet… regulatory paralysis would ensue.”

Democratic Senator Ben Cardin of Maryland responded that “too many people are affected by this. We’ve got to get this moving.”

Anne Kolton, a spokesperson for the American Chemistry Council, tells Stateline the council remains committed to reform. “Unfortunately,” she says, “no changes have been made to reflect our input and the bill remains unworkable and incapable of attracting the broad bipartisan support that will be needed if it is to have a chance of passing the Senate.”

As he watches the politics play out from afar, Washington State’s Sturdevant says he’s not banking on any new federal law in the next year. But with an increased push from states, he says, he’s more optimistic for progress in 2013.


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