Sharon Lerner

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.

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.

The Best Law $125 Million Can Buy

There is little question that the original Toxic Substance Control Act is broken, as even industry has recently begun to admit. TSCA, passed in 1976, was born from outrage about the health risks of asbestos and PCBs, and it gave the EPA the authority to regulate tens of thousands of toxic substances. But the process was heavily influenced by the chemical industry, which initially opposed regulation before helping to write the law. The final legislation grandfathered in the vast majority of some 82,000 chemicals now registered for commercial use. In the almost four decades since TSCA went into effect, the federal agency has required testing for only about 200 chemicals. Of those, just five were partially regulated at the federal level.

Reform of TSCA, which Sen. Frank Lautenberg of New Jersey worked on for more than a decade before his death in 2013, was supposed to close the loopholes. But, as with the original law, after first opposing the legislation, the industry not only got on board but ended up steering the process and flooding Congress with money. In fact, evidence emerged in March that the Senate version of the bill was written by the American Chemistry Council, the chemical industry’s biggest lobbying group.

Since 2014, while Congress was hashing out TSCA reform, the top 10 chemical companies and organizations spent more than $125 million on lobbying. Dow Chemical Company and Koch Industries each spent more than $21 million, while DuPont spent more than $14 million, according toMapLight, a nonprofit group that monitors money in politics. The American Chemistry Council contributed more than $18 million, including$150,000 to the Super PAC supporting the gubernatorial bid of David Vitter, the Republican senator from Louisiana who co-sponsored the bill. Chemical industry contributions were significantly higher for the bill’s sponsors and co-sponsors than for other members of Congress.

All of which helps explain why the chemical industry loves the legislation meant to regulate it. The American Chemistry Council, which supports both the House and Senate bills, represents more than 100 chemical companies, several of which stand to have their products spared from pending regulation, including the Occidental Chemical Corporation, manufacturer of methylene chloride, which California is in the process of restricting; Chemtura, which makes a flame retardant that would be banned by a bill pending in Washington state; and Eastman Chemical Company, which makes the plastics additive DEHP, which is under regulatory scrutiny in Maine. Cal Dooley, CEO of the group, was named one of The Hill’s top lobbyists for 2015. The organization, which reportedly has a budget upward of $100 million, has in the past worked to quash regulationin individual states. If the Senate bill survives as is, the ACC may see less of a need for such localized lobbying.

In response to inquiries from The Intercept, the American Chemistry Council provided a written statement, saying it has “been working tirelessly to help pass legislation that will bring TSCA up to speed with modern science and create strong, nationwide regulatory certainty that will build consumer confidence in the U.S. chemical regulatory system for citizens in all 50 states, protect human health and the environment from significant risks, and meet the commercial and competitive interests of the U.S. chemical industry and the national economy.” Chemtura provided the following comment: “Though it is premature to speculate on the impact of an updated TSCA program on specific state legislation or products, Chemtura supports an updated TSCA and looks forward to working with regulators when the time comes for implementation.” Eastman Chemical Company declined to comment for this story.

The Senate bill, which would also override state restrictions on air and water quality and waste disposal if they’re inconsistent with federal law, has a wide range of supporters, including the American Petroleum Institute, the Chambers of Commerce; the Auto Alliance; the National Association of Manufacturers. Perhaps the most damning endorsement came from ExxonMobil’s CEO, Rex Tillerson, who recently described the bill in an op-ed in Roll Call as “just the comprehensive overhaul we need.”

Meanwhile, the House version of the bill, which preempts states from regulating new chemicals, is supported by more than 100 industry groups, including the Alliance of Automobile Manufacturers, CropLife America (which represents pesticide manufacturers and distributors), the Halogenated Solvents Industry Alliance, and the Chlorine Institute.

People closely involved in TSCA reform continue to pass through the revolving door from Congress to K Street. Over the past two years, top aides to Frank Lautenberg and Tom Udall of New Mexico, the two Democratic senators who played important roles in the negotiations over TSCA reform, have left the Senate to take lobbying jobs. Former Lautenberg negotiator Ben Dunham joined Dentons in March 2014, where he is focusing on the environment and chemical safety, while Udall’s former chief of staff, Michael Collins, went to Mehlman Castagnetti Rosen & Thomas in September. Reached for comment, Dunham noted that he is not representing companies that manufacture chemicals; Collins confirmed that he is focusing on environmental legislation and regulation, among other issues.

In addition to limiting state regulations, the TSCA reform bills now being combined into one law contain provisions making it harder to intercept dangerous chemical imports at the U.S. border and requiring the EPA to designate some chemicals “low priority” without fully evaluating them. And neither version addresses the huge problem of companies being allowed to introduce new chemicals to the market without first proving their safety.

But it’s the state restrictions that would be felt most immediately. In California, which is in the process of banning flame retardant chemicals in toddlers’ nap mats, the impact could be devastating. “If we’re in a situation where the EPA says we’re going to start studying this chemical and that stops the states from acting, that’s a huge setback,” said Ansje Miller, eastern states director for the Center for Environmental Health, which is spearheading the nap mat campaign.

Andy Igrejas, national campaign director of the Safer Chemicals, Healthy Families coalition, which works on TSCA reform, remains hopeful that the worst industry loopholes will be left out of the final bill. “This is the critical moment,” said Igrejas, “because they can combine the bills and really change them in new ways.”

At its best, Igrejas said, the new law could be “a reform that’s modest but still meaningful.” At its worst, he continued, “the people who have been leading the way will be silenced without anything meaningful taking their place.”