State policy experts are disappointed at new proposed restrictions on states’ abilities to regulate toxic chemicals.
Reform to the nation’s oldest toxic-substance control law is a step backward for Washington, state environmental policy experts say.
Legislation passed the U.S. House of Representatives this week that would enact the first significant revisions to the Toxic Substances Control Act since its initial passage in 1976.
No one disputed the law needed reform: it is so ineffective that only a small fraction of the roughly 84,000 registered industrial chemicals in commerce are currently subject to any federal regulations.
Into that void states like Washington have stepped up — acting when the other Washington wouldn’t — to set exposure limits lower than federal levels, and enact bans on everything from lead weights in wheels to flame retardants in mattresses. By taking those steps, Washington and other states also encouraged more states to act, leading in some cases to industries themselves taking national action.
At issue here are potential new hurdles, delays and restrictions on states’ ability to enact their own restrictions on toxics. Instead of being a national leader on controlling toxic chemicals, Washington will now have to fall in line behind the feds and wait for EPA to take the lead, said Rob Duff, chief of staff on environmental issues for Gov. Jay Inslee.
“This handcuffs us,” Duff said. While there is still a process for states to take their own action on toxics, “it is not clear how easy that would be,” Duff said.
Maia Bellon, director of the Washington Department of Ecology, joined state environmental officials from Connecticut, Minnesota, New Hampshire, New York and Vermont in a May 19 letter to Congressional leaders expressing concern on new restrictions on state’s abilities’ to protect their citizens from toxic chemicals.
“I want to make sure I am not stuck doing this very difficult job with one hand tied behind my back,” Bellon said. “This (legislation) does not do justice for Washington state’s children.”
The letter stated in part, “State authorities are excessively and unnecessarily pre-empted, in exchange for the promise of federal protection that is too meager.”
Nationally, business groups from the Adhesive and Sealant Council to the Window and Door Manufacturer’s Association supported the legislation.
“When various states take individual action on specific chemicals or implement regulatory systems unique to them, that creates confusion in the marketplace and makes interstate commerce difficult for companies that operate across state lines,” said Anne Kolton, vice president of communications for the American Chemistry Council in Washington, D.C., representing 170 chemical manufacturers across the country.
In Washington state, the Association of Washington Business, representing 8,000 employers from the largest manufacturers to small businesses, also supported the legislation.
“This creates surety for our member businesses, from a regulatory standpoint, versus a state-by-state regulatory approach,” said Brandon Houskeeper, government affairs director for the AWB. “It makes everyone come to the same table and work toward the same solution.”
Duff said he could understand why industry and federal regulators would prefer one set of rules.
“That is fine, if they are being implemented. But EPA’s action has been limited. A lot of our frustration has to do with that,” Duff said. “There are good people out there who think this legislation is progress, but it is not enough. We are disappointed.”
Washington State Attorney General Robert Ferguson also took issue with the proposed restrictions.
“Particularly troubling is the fact that this bill prevents states from enacting and enforcing new restrictions on a chemical while EPA considers whether to adopt its own restrictions — potentially for years,” he said in a statement. Ferguson signed a letter in 2014 with attorneys general from 13 states also protesting the legislation’s restriction on states’ rights.
Bellon and others said they agreed the law needs to be reformed. “But this is a missed opportunity,” Bellon said, urging Washington’s lawmakers to consider further work on the law in the future. “I hope it doesn’t take another 40 years,” she said.
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The Washington Toxics Coalition, a nonprofit advocacy group, was among environmental organizations that criticized the bill for falling short.
“This creates unnecessary bureaucracy, a get-lost-in-D.C. maze,” said Ivy Sager-Rosenthal, spokeswoman for the coalition. “States in the past have been able to take quick and decisive action within their borders. This cedes their authority to EPA to determine if there is a concern.”
The law also would pre-empt the ability of Washington citizens to enact restrictions on toxics through the initiative process.
The legislation now comes to the Senate for consideration, perhaps as soon as Thursday.
U.S. Sen. Maria Cantwell is “still reviewing the conference report, but has serious concerns with the issue of state pre-emption and is continuing to speak with state officials,” her spokesman Bryan Watt said Wednesday.
U.S. Sen. Patty Murray is reviewing the agreement and talking to stakeholders about the impacts to Washington’s toxic program, her spokeswoman Kerry Arndt said.