Memo to ACC et al.: What’s said in Maryland doesn’t stay in Maryland

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

It’s only a little more than 30 miles from Washington, DC to Annapolis, the Capitol of the State of Maryland.  But to judge from testimony given there on February 24 and March 1 by representatives of the chemical, formulated products and food industries, you’d think Annapolis existed in a parallel universe, with only a passing resemblance to the one in DC.

The occasions were hearings on companion bills introduced into the Maryland State Senate, SB 637, and the State House of Delegates, HB 759, titled the “Healthy Kids, Healthy Maryland – Toxic Chemical Identification and Reduction.”

Actually, the industry associations’ testimonies suggest either of two alternative universes.  In one of them, Maryland should do nothing to address dangerous chemical exposures because the federal Toxic Substances Control Act (TSCA) and other related laws are working quite well, thank you very much.  Residing in this parallel universe are the American Chemistry Council (ACC), the American Cleaning Institute (ACI, until recently the more accurately named Soap and Detergent Association), the Maryland Industrial Technology Alliance and the Consumer Specialty Products Association (CSPA).

In the other parallel universe, Maryland should do nothing to address dangerous chemical exposures because it will only get in the way of TSCA reform, which is just around the corner.  Inhabiting this alternative universe are the Grocery Manufacturers Association (GMA), the Can Manufacturers Institute, and yes – as another indication that it just can’t quite make up its mind about TSCA reform – once again, the American Chemistry Council. 

The bills in question move away from the single-chemical focus bills that have so enraged the industry over the last decade.  If adopted, they would make Maryland the fifth state – after Maine, Washington, California and Minnesota – to adopt laws aimed at establishing a broader chemicals policy that more systematically reviews and prioritizes chemicals and acts to control those of greatest concern, for example, when used in products to which children may be exposed.

The bills not only have the broader focus called for by industry, but they assign experts at state health and environmental agencies, rather than legislators, the tasks of selecting and deciding on appropriate actions to be taken on chemicals, and include concepts such as prioritization and children’s health protection that the industry says it supports.

All this for naught, to judge by the industry testimony.  Industry’s characterization of the bills is that they are scary big.  Here are just some of the industry’s many downer descriptors of the impending disaster to be wreaked by these bills:  Costly, burdensome, duplicative, complex, expensive, arbitrary, based on flawed science, too taxing of limited state resources, “extremely costly for the entire nation,” “will cause massive supply chain issues,” “will surely collapse under its own weight,” could “significantly reduce the availability of food and beverage products in Maryland,” and, of course … wait for it … will “put workers out of jobs in the state of Maryland.”

Oddly, some of these same groups simultaneously take Maryland legislators to task for thinking too small.   ACC scolds that the bills will only result in a “piecemeal review of a few chemicals a year” (does it really seek a bill that would set a faster pace?).  And ACI chides Maryland’s effort because it does not “apply to the whole of commerce”!

But what’s the best fun about the industry testimonies is the alternative version of reality they sought to present to Maryland elected officials.  ACC wants them to know TSCA “imposes significant reporting, testing and regulatory requirements on the manufacture, import, processing use and disposal of chemicals.”   Wow, really?  Need I say it again – fewer than 300 chemicals required to be tested, only limited uses of five chemical regulated, in 35 years of life under TSCA?

And ACC asserts that TSCA’s “statutory and regulatory foundation … is sound.”  That sounds uncannily like ACC’s rhetoric before its pro-reform conversion in late 2009 , when it testified before Congress that “TSCA is a sound statutory and regulatory system.”  But in fairness, at least ACC now goes on to say it supports updating TSCA to “meet the technological and safety requirements of today.”

CSPA indicates there’s no need for Maryland to act because its industry already “is extensively regulated by several statutes,” and expresses concern that the Maryland bills “would duplicate activities already being performed by a number of federal agencies,” including EPA.

The Maryland Industrial Technology Alliance calls the Maryland action “unnecessary” because “for the last 35 years the Toxic Substances Control Act and other federal laws have protected consumers and children in the marketplace [sic]” – not sure which children in the marketplace MITA has in mind!

ACI calls any action by Maryland “counterproductive in light of other ongoing and successful chemical management work.”

These claims of success would be easier to swallow but for the fact that TSCA is widely acknowledged by essentially everyone but industry to have utterly failed to ensure Americans are protected from toxic chemical exposures.

Finally, both ACC and the Grocery Manufacturers Association are concerned that Maryland is interfering with the nation’s business and impeding TSCA reform.  ACC asks that “the State should allow Congress to continue its reform” of TSCA – and “allow the United States Environmental Protection Agency to continue working on implementing TSCA.  And GMA believes Maryland acting “would be a mistake and would, in fact, set back the national effort.”

These concerns would be a bit easier to swallow but for the fact that the same industry groups were instrumental in ensuring TSCA reform did not advance in the last Congress, and have opposed at every turn EPA’s modest actions under its current authority.

Of course, perhaps more than any other factor it is action by the states over the past decade to fill the void at the federal level that has driven the industry to shift its long-standing opposition to TSCA reform to what appears more and more to be a grudging acceptance of the need for “modernization.”

Back here inside the DC beltway, what the industry has been saying in Maryland only serves to raise the same questions I and many others have been asking for the past year:  What does the industry actually want, and when do they want it?