It’s ‘Wait And See’ If New Federal Chemical Safety Law Will Impact State Regulations

President Obama just signed into law a new and long awaited Toxic Substances Control Act (TSCA). Officially called the Frank R. Lautenberg Chemical Safety for the 21st Century Act, it’s expected to radically change how the federal government oversees thousands of chemicals used in products and in the work place. (It was named after the New Jersey senator who died in 2013. His main priority in his final term was a bill he coauthored to overhaul chemical safety laws.)

For decades, lawmakers, the chemical industry and environmental advocates agreed — the law was outdated and ineffective. At the signing ceremony on June 22nd, 2016, the president explained just how ineffective.

“In 1976, some 62,000 chemicals were already on the market but the law placed demands on the EPA that were so tough, so onerous, that it became virtually impossible to see if those chemicals were harming anybody,” Obama said. “In fact, out of those original 62,000 chemicals, only five have been banned. Five. And only a tiny percentage have even been reviewed for health and safety.”

‘Need To Fully Protect’ All Interests

The new TSCA significantly expands the number of chemicals subject to federal regulation. Republican Sen. David Vitter from Louisiana is one of the bill’s key writers. He says TSCA’s overhaul is long overdue.

“We needed to fully protect public health and safety,” Vitter told fellow members of the U.S. Senate a few weeks ago. “We also needed to ensure that American companies do not get put behind by a regulatory system which is overly burdensome and unworkable.”

Democratic Sen. Barbara Boxer from California spoke about the bill’s major sticking point, which she and other lawmakers say they would have written differently.

“In the final bill,” Boxer said, “we were able to make important exceptions to the preemption provisions.”

Preemption provisions mean that, going forward, the EPA can potentially override state chemical safety regulations. But, Boxer said, states still have time.

“When EPA announces the chemicals they are studying, the states still have up to a year and a half to take action on these particular chemicals to avoid preemption until the EPA takes final action,” Boxer said.

Her advice to states? Get going on regulations, as they’ve been doing for years. One example: In 1998, Vermont lawmakers forced industry to clearly label products sold in the state that were made with mercury — things like light bulbs and thermostats. Connecticut, Maine, Massachusetts and Rhode Island followed suit. So did Minnesota, New York, Louisiana and Washington state. Several states this year are debating proposals to ban BPA, flame retardants and formaldehyde.

States Expected To Race On Chemical Safety Regulations

The states’ concern with the new law? If the EPA chooses a chemical for safety review, before a state does, the states cannot do their own review of the chemical, for a period of time, or maybe at all. An EPA assessment could take up to three years. The chemical during that time is largely unregulated.

Mike Belliveau from the Environmental Health Strategy Centers, who at one point led Maine’s mercury reduction campaign, says the concern is, “the federal law takes the truly unprecedented step of prohibiting states from taking action on dangerous chemicals.”

Belliveau says there’s absolutely no policy rationale for not allowing states to remain regulators.

“It was simply a concession to the chemical industry, which is trying to chill state leadership in moving the market to safer chemicals,” Belliveau says.

It’s not all bad, he adds. For one thing, the EPA will have increased oversight of the chemical industry.

Anne Kolton from The American Chemistry Council says the EPA should make the final call on safety regulations. There needs to be a definitive decision maker, she says, “in order to protect the free flow of interstate commerce and ensure there are clear and understandable messages to both consumers and the marketplace.”

Kolton also says in many cases, “states don’t have the resources or expertise to conduct risk evaluations and make truly evidence-based, objective decisions about the safety of a chemical.”

Attorneys General Push Back, Politely At First

While Congress debated the bill, states have pushed back. Massachusetts Attorney General Maura Healey is one of a dozen attorneys general who earlier this year jointly wrote to Congress and told them states need to be able to make their own best decisions about chemical regulation.

After President Obama signed the bill, Healey said in a press release, the attorneys general remain committed to “preserving the authority of states and local government.”

Also in this coalition, Vermont Attorney General William Sorrell. While hosting a National Association of Attorneys General conference in Burlington this week, he said concessions were made in the bill. In the end, states didn’t get a full loaf, but they got more than half.

“We raised about seven different issues with the bill back in January. Most of those were addressed,” Sorrell said. He then added, “Not all.”

What wasn’t addressed? It’s still unclear what happens in the end if the EPA sets a safety standard weaker than a state’s, and whether states would be granted waivers and how they would qualify.

Like any major piece of legislation, the proof will be in its implementation. Some say this is a comprised bill. Some say the new TSCA will only be as good as the EPA itself, and that will depend on funding.

In a recent blog post, one notable environmental group wrote a memo to state attorneys general, legislatures and governors. The tone openly tapped into the popular show Game of Thrones.

“The Night’s Watch is an underfunded and understaffed cadre of public employees guarding an aging infrastructure against an ancient evil,” they wrote.

“The fact is that you,” addressing state leadership, “still have a critical job to do. In the parlance of the show, 'Your watch has not ended.'”

This story is a production of the New England News Collaborative and originally aired on New England Public Radio.