A NEW SET OF BILLS that aims to update the 1976 Toxic Substances Control Act may nullify the efforts of states such as Maine and California to regulate dangerous chemicals. The Senate’s bill, passed last month, just before the holidays, is particularly restrictive. The Frank R. Lautenberg Chemical Safety for the 21st Century Act — named, ironically, for the New Jersey senator who supported strong environmental protections — would make it much harder for states to regulate chemicals after the EPA has evaluated them, and would even prohibit states from acting while the federal agency is in the process of investigating certain chemicals. The Senate’s version has some significant differences from the House bill — the TSCA Modernization Act, which passed in June — and the reconciliation process is now underway. If the worst provisions from both bills wind up in the final law, which could reach the president’s desk as soon as February, the new legislation will gut laws that have put Oregon, California, Maine, Vermont, Minnesota, and Washington state at the forefront of chemical regulation.

Photo: Getty Images

Toxic Sippy Cups and Baby Bottles For Mike Belliveau the passage of Maine’s chemical law in 2008 felt like the crowning moment in his career. The environmental advocate had spent years working on the Kid Safe Product Act, which is one of the strongest protections against dangerous chemicals in the country. Since it was passed, Maine has used the law to come up with a list of more than 1,700 “chemicals of concern.” The state has also required manufactures to report the use of a handful of those chemicals, and has banned them altogether when there are safer alternatives. Among the chemicals Maine has strictly regulated are flame retardants called PBDEs, which are linked to learning disabilities and behavior problems, and BPA, an endocrine disruptor and likely human carcinogen. Maine phased out the use of PBDEs in furniture and electronics. Manufacturers must now report the use of BPA in certain products and can no longer use it in baby bottles, sippy cups, water bottles, infant formula cans, or baby-food packaging. The EPA was also looking at the health effects of PBDEs and BPA, but while it was considering them, Maine took action. Maine’s law turned out to be more than just a local triumph. Its requirement that manufacturers disclose the use of chemicals called NPEs, which are toxic to aquatic life and likely harmful to human development and reproduction, in products sold there led to the revelation that the chemicals were present in hundreds of products sold nationwide, including paint. And the ban on BPA nudged the whole country away from using that chemical. Rather than just changing how it made products sold in Maine, the giant toymaker Hasbro wound up removing BPA from all its products. “It’s been huge,” said Belliveau, who is the executive director of the Environmental Health Strategy Center in Bangor. “The little state of Maine helped close the door nationwide on the use of BPA.” Although the Senate’s TSCA bill would leave existing state restrictions on specific chemicals intact, provisions in the bill would stop states from setting regulations going forward — and obliterate efforts that are already underway. Take Washington state’s pending legislation to ban a group of flame retardant chemicals used in furniture and children’s products. Advocates there have been working for years to ban these endocrine disruptors and likely human carcinogens. “We’re very close,” said Randi Abrams-Caras, senior campaign director of the Washington Toxics Coalition. But perhaps not close enough. Although Washington’s House passed the ban 95-3 and the state Senate is working on a similar bill, TSCA reform could invalidate the whole thing. If the EPA puts these flame retardants on its yet-to-be-drafted priority list, a reasonable expectation since the agency is already looking at some of them, the Senate bill would preempt new state efforts to restrict them. “Our state would have to stop any work we’ve been doing,” said Abrams-Caras. California’s current efforts to protect people from methylene chloride, a probable human carcinogen used in paint strippers, could also be stopped in its tracks if the state preemption provision in the Senate bill becomes law. So could Maine’s next use of its chemicals law — to ban four types of phthalates, which are used in plastics. The Senate bill prohibits states from acting on chemicals that the EPA deems “high priority” while the agency is evaluating them. But the agency’s investigations can go on for years and even decades before it takes action. Back in 2002, for instance, the EPA initiated a high-priority review of PFOA, a chemical used to make Teflon and hundreds of other products. Probable links between the chemical and six diseases have been found in the intervening years, and contamination is now known to be widespread, yet the agency has not regulated it. The EPA has been investigating the safety of some of the flame retardants that would be banned by the Washington state bill for more than 25 years. And the agency has spent at least 30 years looking at the safety of methylene chloride, which is still widely available in hardware stores though its fumes have been killing people since at least the 1940s.

Photo: UIG/Getty Images