Selected category: States

UPDATED: Understanding Preemption in the Lautenberg Act

FRL21 Preemption sidebar UPDATEDRichard Denison, Ph.D.is a Lead Senior Scientist.

[*UPDATED 5-8-15:  This is a new version of an earlier post that I’ve updated to reflect changes made to the preemption provisions in the bill as reported out by the Senate Environment and Public Works Committee on April 28, 2015.]

By far the most difficult and contentious aspect of the debate over reform of the Toxic Substances Control Act (TSCA) is the extent of federal preemption of state authority.  The range of positions on this is truly gigantic, from zero preemption at one end of the spectrum to full-field preemption effective upon enactment (the position espoused by some in industry).

The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) has landed somewhere in the middle of this spectrum, with some stakeholders saying it still goes too far and others saying not far enough.  And wherever you land on that question, it should be acknowledged that preemption in the bill is more extensive than under current TSCA, but much less extensive than it was in the predecessor to the Lautenberg Act, 2013’s Chemical Safety Improvement Act (CSIA).

There has been a lot of confusion surrounding preemption in the Lautenberg Act.  So in this post, I describe how preemption works under the bill, and what is and is not preempted.

In the sidebar is a summary of the key preemption provisions of the Lautenberg Act.  The rest of this post is a deeper dive for those who want one.

Preemption under the Lautenberg Act

The first thing to recognize is that any preemption that applies is always chemical-specific and directly matches the nature and scope of the triggering federal action.  That is, preemption attaches only when EPA acts on the same chemical that has been or would be subject to a state action, and only when EPA considers the need for or takes the same type of action as has been or would be taken by a state.  And preemption is limited to the scope of the EPA action (for example, the specific uses of a chemical considered by EPA).

Outside of these boundaries, states are free to act on chemicals.  The new system would be similar to the current system except when EPA decides a chemical is a high priority and may require federal action.

Below I discuss the major components to the preemption provisions of the Lautenberg Act.

Read More »

Also posted in Health Policy, TSCA Reform| Tagged | Comments are closed

Evidence grows linking DEHP exposure to reproductive toxicity: What is the state of regulation?

Lindsay McCormick is a Research Analyst.

Phthalates are chemical plasticizers found in a wide array of industrial and consumer products, including polyvinyl chloride (PVC) piping and tubing, cosmetics, medical devices, plastic toys, and food contact materials.  Because phthalates are often not strongly chemically bound to these products, they can leach out of those products and into the environment around us. Given this, it may not be surprising that phthalates and their metabolites can be measured in the bodies of nearly all people tested.

This post reports on important new research on DEHP and summarizes the state of regulation of the chemical in the U.S. and abroad.   Read More »

Also posted in Emerging Science, EU REACH, Health Policy, Health Science, Regulation| Tagged | Comments are closed

What’s our best chance of ensuring chemical safety?

Richard Denison, Ph.D.is a Lead Senior Scientist.

The 1976 Toxic Substances Control Act (TSCA) created the serious problem we face today when it grandfathered in all chemicals in use at the time without requiring any safety testing or reviews.  Nearly 40 years on, we have a daunting task ahead of us to establish a new system that is accountable for the safety of chemicals.  It is essential that we get started as soon as possible.

The Lautenberg Act, which would require safety reviews of all chemicals in commerce, represents a fundamental change in our country’s chemicals policy:  it turns us away from the passive system under current law that simply assumes chemicals are safe and toward an active system that requires evidence of safety for chemicals to get or stay on the market.  It’s a huge paradigm shift, which won’t happen overnight, but is likely to have far-reaching consequences.   Read More »

Also posted in Health Policy, TSCA Reform| Tagged | Read 1 Response

Understanding Preemption in the Lautenberg Act

FRL21 Preemption sidebarRichard Denison, Ph.D.is a Lead Senior Scientist.

[*UPDATE 5-8-15:  There is a new version of this post here which I’ve updated to reflect changes made to the preemption provisions in the bill as reported out by the Senate Environment and Public Works Committee on April 28, 2015.]

By far the most difficult and contentious aspect of the debate over reform of the Toxic Substances Control Act (TSCA) is the extent of federal preemption of state authority.  The range of positions on this is truly gigantic, from zero preemption (Senator’s Boxer’s consistent position) at one end of the spectrum to full-field preemption effective upon enactment (the position espoused by some in industry).

The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) has landed somewhere in the middle of this spectrum, with some stakeholders saying it still goes too far and others saying not far enough.  And wherever you land on that question, it should be acknowledged that preemption in the bill is more extensive than under current TSCA, but much less extensive than it was in the predecessor to the Lautenberg Act, 2013’s Chemical Safety Improvement Act (CSIA).

There has been a lot of confusion surrounding preemption in the Lautenberg Act.  So in this post, I describe how preemption works under the bill, and what is and is not preempted.

In the sidebar is a summary of the key preemption provisions of the Lautenberg Act.  The rest of this post is a deeper dive for those who want one.

Preemption under the Lautenberg Act

The first thing to recognize is that any preemption that applies is always chemical-specific and directly matches the nature and scope of the triggering federal action.  That is, preemption attaches only when EPA acts on the same chemical that has been or would be subject to a state action, and only when EPA considers the need for or takes the same type of action as has been or would be taken by a state.  And preemption is limited to the scope of the EPA action (for example, the specific uses of a chemical considered by EPA).

Outside of these boundaries, states are free to act on chemicals.  The new system would be basically the same as the current system except when EPA decides a chemical is a high priority and may require federal action.

Below I discuss the major components to the preemption provisions of the Lautenberg Act.   Read More »

Also posted in Health Policy, TSCA Reform| Tagged | Read 2 Responses

Conflicted West Virginia chemical spill panel is repeating many of CDC’s mistakes

Richard Denison, Ph.D., is a Senior Scientist.

Yesterday, the chair of a “Health Effects Expert Panel” convened by the West Virginia Testing Assessment Project (WV TAP) held a press conference to present the panel’s preliminary findings from its review of the “safe” level set by the Centers for Disease Control (CDC) for MCHM and other chemicals that spilled into the Elk River in early January and contaminated the drinking water of 300,000 West Virginia residents.

A final report from the panel apparently won’t be released until May, but a press release issued yesterday sounds far from preliminary in saying the panel supports CDC’s methods, assumptions, toxicity data and “safety factors.”  While providing no details, the release indicates the panel is using the same flawed and incomplete summary of a toxicity study used by CDC in its rush to set a safe level for MCHM.  And it parrots CDC’s erroneous use of the term “safety factors,” which is at odds with the National Academy of Sciences’ strong recommendation that such term should be avoided as it is highly misleading.

In addition to choosing to rely on the same summary CDC used of a 1990 study conducted by MCHM’s manufacturer, Eastman Chemical, the panel accepted at face value Eastman’s interpretation that the study identified a no-effect level.  That conclusion has been questioned and cannot be independently assessed because Eastman has not provided the actual quantitative data from the study.  Moreover, the study used a protocol dating from 1981 that has been extensively revised at least twice since then.  These are among the many problems identified with this study.

It appears the panel’s main departure from CDC was to assume the most highly exposed population would have been formula-fed infants instead of older children.  The panel’s “safe” level is 120 parts per billion (ppb), a value about 8-fold lower than CDC’s level of 1 part per million (ppm).  That seems an improvement over the CDC’s methodology.

The panel’s conflict of interest

However, the process by which the panel itself was formed and the clear conflict of interest (COI) involved – a conflict that only came to light in response to a reporter’s questions at yesterday’s press conference – are deeply concerning.

The company selected by WV TAP to convene the Health Effects Expert Panel is named Toxicology Excellence in Risk Assessment (TERA), founded by Dr. Michael Dourson.  TERA has a long history of working with the petrochemical and related industries.  Acknowledged sources of industry funding noted on its website include the American Petroleum Institute, PPG Industries, Eli Lilly, the American Cleaning Institute (formerly called the Soap and Detergent Association), Procter & Gamble, and the Nickel Producers Environmental Research Association.

While TERA was chosen by WV TAP to convene the Health Effects Expert Panel, TERA’s role is far more substantial.  TERA appointed its own founder, Dr. Dourson, as chair of the panel, and Dourson was the only one of the panel’s members to speak at yesterday’s press conference.

At the press conference, a reporter asked Dourson whether he or TERA had worked for Eastman Chemical, Dow Chemical (the maker of the other chemicals that spilled on January 9) or trade associations that represent their interests.  Dourson’s response to this question was apparently the first public disclosure of his affiliations with these companies.  According to the Charleston Daily Mail:

During the event, Dourson acknowledged his nonprofit organization TERA had conducted some work for Dow Chemical, one of the makers of a chemical believed to have been involved in the spill. He said they’ve also done work for Eastman Chemical, the maker of crude MCHM, but not recently. TERA has done work for the state of West Virginia in the past as well, he said.

On its website, TERA says it’s received between 31 and 40 percent of its funding since 2008 from industry and industry related work. The rest comes from “government and other nonprofit work.”

The fact that an individual and company that have done work directly for the companies that make the spilled chemicals were selected not only to convene the expert panel, but to chair it and serve as its spokesperson, points to a clear conflict of interest.  And the fact that the conflict was only revealed because a reporter happened to ask the right question is even more troubling.

A quick search for recent work done by Dourson and TERA funded by Dow turned up the following:

TERA also convenes and manages several other projects that are heavily funded by the chemical industry and promote its agenda.  These include:

Anyone else see a problem here?

 

Also posted in Health Science, Industry Influence| Tagged , , | Comments are closed

No more just California Dreamin’: First three priority products proposed

Jennifer McPartland, Ph.D., is a Health Scientist.

Today the California Department of Toxic Substances Control (DTSC) announced its first three draft priority products—the next major milestone in the implementation of its Safer Consumer Product (SCP) regulations to address chemicals of concern in the marketplace.  While we’re still at the start of a long process, today’s announcement is the clearest indicator to date of the impact these regulations may have on consumer products.

The release of the draft priority products follows DTSC’s release last September of its candidate chemicals list and from within this list, the subset initial candidate chemicals list.  Together with the initial candidate chemical list, the identification of the draft priority products now defines the possible set of chemical-product combinations that may head toward alternatives assessment.  Read on for a description of the chemicals and products and of the next phase of regulatory actions.  Read More »

Also posted in Health Policy| Tagged , , , , , | Comments are closed
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