Federal policy on toxic chemicals — things like asbestos, chlorofluorocarbons, formaldehyde — has been mostly unchanged since 1976.
In the intervening 40 years, thousands more new chemicals have been developed and marketed but federal law was unable to keep up, both in terms of testing to find out which ones were unsafe, and creating regulations to protect people from them.
That’s why everyone from environmentalists to big business is welcoming Congress’ efforts to update the law, which passed both chambers this week and awaits President Obama’s signature.
But the reaction has been a little more tepid in Minnesota: during the 40-year period of inadequate federal regulation, the state has been a national leader in approving laws to control chemicals.
Advocates in Minnesota say there are things to like about the new law, but they’re stuck on one problem: it would, in most instances, prohibit states from making their own laws governing protection from dangerous chemicals.
Federal law on chemicals outdated, inadequate
Since the initial passage of the 1976 law, called the Toxic Substances Control Act (TSCA), the Environmental Protection Agency has mandated the testing of 200 chemicals — a tiny fraction of the approximately 80,000 chemicals on the market in the U.S. — everything from industrial pesticides used in agriculture to cleaning products you buy at the grocery store.
Out of all these chemicals, the EPA has restrictions placed on nine, including asbestos, PCBs, and hexavalent chromium — the toxin made famous by the advocacy of Erin Brockovich.
Elected officials in both parties have acknowledged the shortcomings of existing law, which fails to give slow-moving federal regulators the authority and the resources to keep up with the growing body of chemicals used in the market.
According to the Government Accountability Office, EPA rules can take three to five years to finalize, and up to two and a half years for private entities to implement. It could be a decade from the time a rule is considered before its effectiveness can comprehensively be assessed.
Beyond that, the EPA has failed to implement effective rules even on the highest-profile chemicals known to be harmful to people. In 1989, an EPA rule banning most products containing asbestos was overturned, and government regulation of that substance, though it exists, continues to lag due to financial restraints built into existing law.
Since the 1970s, states fill the void
In the face of slow action — or outright inaction — from Washington, states have stepped up to fill the regulatory void. Thirty-four states have passed some type of law regulating chemicals, but a handful of states have taken the lead in implementing the most assertive policies.
For example, in 1986, California voters approved Proposition 65, a ballot initiative that requires citizens to be informed of exposure to toxic substances. Californians have since grown accustomed to ubiquitous “Prop 65” warnings placed, for example, at gas stations, or on the labels of some housewares.
Minnesota has also been in the vanguard of states — which also includes Washington, Vermont, and Massachusetts — that have successfully gotten robust chemical-regulation policy onto the books.
According to Kathleen Schuler, who heads up the Healthy Kids and Families Program at Conservation Minnesota, Minnesota has passed ten bills regulating toxic chemicals in the last decade.
That includes the 2009 effort to ban bisphenol-A, or BPA, a chemical once widely used in many plastics that was found to have potentially serious health effects. (The U.S. Food and Drug Administration has since banned BPA in many consumer products.)
In 2014, Minnesota banned products containing triclosan, a chemical used in many consumer items marketed as “anti-bacterial.” The EPA has yet to take broad action on triclosan, which the FDA says is safe, though studies in animals have shown the chemical may have the hormone-disrupting properties of BPA.
Last year, Minnesota also approved a ban on HBCD, a flame retardant found in upholstered furniture and some kids’ products, along with three other flame retardants in a hard-fought battle in the legislature.
Schuler says Minnesota was the first state to pass a ban on HBCD, which the state government believes has a concerning potential to affect reproductive health and the thyroid in humans.
“We’ve definitely been one of the lead states,” Schuler says, noting that chemical regulation policy has received support from Republicans and Democrats alike in St. Paul.
New law could block strong state action
When the ink dries on the new law, however, Minnesota’s power to pass a HCBD ban could be much more limited.
That’s because the central idea behind the policy overhaul is to eliminate the patchwork of different laws that exist in states across the U.S. In return for the EPA getting greater authority to issue new regulations on chemicals, states will lose most authority to pass chemical control laws when they see fit.
States will retain room to act in some scenarios. After the law is signed, the EPA will undergo a review process of the ten most pervasive toxic chemicals, a list that will likely include substances found in common things like cleaning products, and flame retardants. Minnesota could take whatever action state legislators approve with respect to controlling those substances.
It also doesn’t void laws retroactively: state and local laws passed prior to this April can stand, so Minnesota’s ban on HBCD, for example, will remain law.
Advocates say that’s a start, but they worry what will happen when the EPA moves on from its first ten chemicals, and begins evaluating 20 chemicals at a time, which is the process mandated by the new law.
States will be blocked from taking action on those chemicals under EPA review. “That will stymie state protections for chemicals in consumer products, such as carcinogenic flame retardants that expose firefighters on the job, and hormone-disrupting phthalates that are found in home flooring and children’s personal care products,” Schuler said.
“The pace of chemical reviews can be very slow. If the EPA picks ten chemicals, they’ll be working on them for a number of years. Considering there’s 80,000 chemicals in process, it’s kind of a drop in the bucket.”
However, thanks to a late compromise brokered in Congress, if the EPA takes too long to evaluate a chemical — three and a half years is the max — states can begin taking action themselves.
Still, given that researchers continue to find adverse public health problems from widely used chemicals, Minnesota advocates are worried that whenever the next BPA is found, their hands will be tied in a space where they once could act swiftly.
It’s that piece of it that most concerns John Linc Stine, who heads the Minnesota Pollution Control Agency and has been a vocal critic of the TSCA update. He has called the authority granted to EPA in the new law “too meager.”
“The main thing I see as challenging about the legislation,” Stine says, “is where the understanding of health risks is emerging, in the time period where you’re trying to evaluate health risk, states have moved forward to be protective of health and the environment. What concerns us about the bill is that it preempts state regulation of that sort.”
Beyond that, there is concern that a provision in the new law will put consumers in the dark about chemicals in imported products, like children’s toys.
Previously, Schuler said, the EPA required notice if a problematic chemical is present in an imported item before that item can be sold in the U.S. The new law contains a higher bar for regulators to ask for that notification, she says.
“We rely on the EPA to be the watchdog on these issues and this bill will make it harder for them to protect the public.”
Some update better than no update?
Still, even those who are critical of the new chemical control bill concede that it’s not all bad, suggesting that a less-than-ideal update is better than no update at all.
According to Stine, “the updating of the act is long overdue, and there are provisions of the original act that are no longer effective, but this is a significant step forward.”
Schuler says it finally gives feds much-needed authority to go after asbestos more aggressively. Beyond that, the law requires federal regulators to pay special attention to vulnerable populations — industry workers, communities located near chemical facilities, children — in reviewing the effects of chemicals and issuing new rules.
Stine adds that “the new language of TSCA will be a positive step forward for the protection of women, children, and pregnant women.”
The TSCA update has been under construction since President Obama’s first term, and in that time, the policy has moved further in line to what many environmentally-oriented policymakers wanted.
The push has even been supported by the chemical industry, which would concede stronger national regulatory standards if it meant that states were limited in passing their own specific laws, which industry does not like.
Opposition in Congress exists, but the bill seems likely to make it through unscathed. On Tuesday, it passed the House of Representatives by a margin of 403 to 12 — with all Minnesota representatives voting in the affirmative.
It is likely to pass the Senate, though on Thursday, Kentucky Sen. Rand Paul blocked it for two weeks, saying he needed more time to read through the 180-page bill.
Looking ahead, the issue for Minnesotans — and for state-level officials nationwide — becomes figuring out how best to work with federal regulators to define the law as it’s implemented.