California bypasses feds, presses ahead on regulation of toxic chemicals

Introduction

Aiming to identify and remove dangerous chemicals from consumer products, California today formally adopts new rules that go well beyond the flimsy federal protection net weakened by decades of D.C. delay.

California’s Safer Consumer Products Regulations, described as the first of its kind in the country, allows the state to publish a list of potentially threatening chemicals — and then, by next April, target up to five priority products containing them.

Companies manufacturing those goods in California will have to launch detailed assessments to see whether safer chemicals are available and, if so, alter their products. The goal: To remove toxic chemicals from commerce and prompt industry to provide safe alternatives.

“We’re not only saying something should be taken out,” Karl Palmer, chief of the state’s Safer Consumer Products Branch, said in an interview. “But we’re saying, ‘What’s going to be used in its place?’ So we are going to get from something bad to hopefully something that is better.”

The initial target of five products, state officials say, represents the launch of an effort they envision bringing long-term change. “The program starts out small, but it sends a big message,” Debbie Raphael, director of California’s Department of Toxic Substances Control, said in a statement. “Smart businesses are already planning ahead, looking for alternative chemicals they can promote as less-toxic, family friendly and environmentally safe.”

California is moving ahead against the backdrop of long-running delays in revamping federal statutes meant to protect consumers from toxic substances.

The federal Toxic Substances Control Act, passed in 1976, grants the Environmental Protection Agency power to require testing of dangerous compounds. Yet some four decades later, the EPA has rarely used that power as Congress has been tied up in a protracted effort to reform TSCA.

Under TSCA, the EPA said, it has “only been able to require testing on a little more than 200 existing chemicals,” and banned five. “Restoring confidence in EPA’s existing chemicals chemical management program is a priority for EPA and the Administration,” the agency said in a statement.

Continuing delays in enhancing the federal rules are “certainly a factor” in California’s new initiative, the state’s Palmer said. Consumers are also pushing for greener goods.

“The spirit and hope of TSCA, I think most people across the board would agree have not been fulfilled,” he said. “Had TSCA worked maybe we wouldn’t have needed to do this.”

He added, “We hope if and when TSCA is revived it will be for the good of everyone. We don’t really want to wait, we can’t wait for that.”

————————-
Don’t miss a single Center for Public Integrity investigation on the environment.
Sign up now to receive special newsletters relevant to your interest.
————————-

State officials across the country share the sentiment, and legislators from Maine to Washington State have pushed bills to strengthen their states’ abilities to disclose and remove harmful chemicals. Yet many such bills have failed in recent years, a Center for Public Integrity investigation found, amid heavy pushback from legislative critics, lobbyists and the chemical industry.

State officials across the U.S. support strengthening TSCA — but don’t want changes to handcuff their ability to protect consumers in their own states. Just last month, the Environmental Council of the States, a non-profit, non-partisan association of state environmental leaders, passed a resolution urging reform of the federal statutes. Among the group’s goals:

• Preserving “state authority to protect citizens and the environment from toxic exposures and to manage chemicals of concern … ”
• Ensuring that “the burden is effectively placed on manufacturers to prove that existing and new chemicals are safe.”

“States don’t want to lose the ability to act to restrict a chemical in order to prevent harm to the public or the environment,” Justin Johnson, Deputy Secretary of the Vermont Agency for Natural Resources, told a House panel studying TSCA reform last month. “This ability to act is important to states because it is the backstop to a weak federal program, or a federal program that does not work as intended, or a federal program that acts very slowly or one that fails to act when reliable scientific data indicates that action is needed.”

The American Chemistry Council, an industry advocacy group, has opposed hundreds of state bills in recent years, the organization’s tax forms show. The ACC says true toxic reform should come through TSCA, not the states, and backs a pending proposal pushed by the late New Jersey Sen. Frank Lautenberg.

In California, the ACC pushed back against the new regulations. “At best the proposed regulation will produce a marginal improvement in human health and environmental safety, but at great expense and lost opportunities for businesses nationwide,” the council wrote in October.

Yet unlike in other states, where multiple bills died amid industry and legislative opposition, California’s measure — sown over five years of study — moves ahead. “We’ve had push back, push forward from all sides,” Palmer said. “That’s what we’ve done over the past couple of years — listen to everyone.”

Now, the state department will develop a list of “priority products” that contain one of approximately 150 toxic chemicals.

By April, the state will cite up to five such products. “Companies that want to sell these ‘priority products’ in California will then perform ‘alternative assessments’ to determine if viable safer versions are available,” the California Department of Toxic Substances Control said.

If viable options exist, manufacturers could make the change or take the item off the market. “Or ultimately we could restrict the sale of this product,” Palmer said.