Editorial: Preserve states’ role regulating chemicals

On Jan. 9, an obscure chemical – MCHM – was discovered seeping into the drinking water of 300,000 West Virginians. It smelled like licorice, but how dangerous was it? Residents didn’t get a definitive answer.

State officials didn’t know. Federal officials didn’t either, because the chemical used to scrub the ash from coal hadn’t undergone the kind of testing envisioned by the federal Toxic Substances Act of 1976. In fact, this chemical was among about 62,000 that were grandfathered in when the federal law was written nearly 40 years ago.

A rewrite of the federal Toxic Substances Act of 1976 is long overdue. Both parties agree. But the current revisions debated in Congress still fall short of what’s needed to protect public safety. Rather than ensure that more chemicals are reviewed, House and Senate bills call for regulators to establish a priority list and focus on that subset of chemicals.

Problem is, obscure compounds – as MCMH once was – might elude review. And if a state wanted to issue its own regulations, the proposed bills would remove its authority to do so.

The current law isn’t much to brag about, but it at least allows states to play a role in protecting citizens from chemicals.

Washington Attorney General Bob Ferguson has joined colleagues in 12 other states in protesting the proposed pre-emption of state regulation of chemicals. In a letter to the sponsor of the House bill, Rep. John Shimkus, R-Ill., the attorneys general point out that states have often been the leaders in banning or controlling chemicals that pose a danger to human health.

Connecticut, for example, regulated PCBs before the federal government did.

If the House bill were to pass, many state laws could be overridden and new ones could not be proposed. Examples of laws in Washington state are: a ban on certain flame retardants, a ban on sports bottles, cups and containers containing bisphenol A (BPA) and a ban on children’s products containing lead, cadmium and phthalates above certain concentrations.

Proponents of the House bill say a federal standard for regulating chemicals is better for business than a patchwork of state laws. But states intervened, because of the gaping holes in the federal law. Only a small fraction of more than 80,000 registered chemicals are regulated.

The bills in Congress wouldn’t dramatically change that equation. As with current law, the default position is that chemicals are safe until it’s proven otherwise. And the bills would continue to keep regulators on a short leash.

Oddly, hydraulic fracturing, or fracking, is getting the opposite treatment in Congress. Local control is touted in that case. Last November, the House voted to block federal regulations, saying the states are doing a fine job of regulating the practice and protecting their drinking water, even though the laws vary from state to state.

Politicians are adept at adjusting rationales as needed, so it’s important to stay focused on the real issue. Chemicals are poorly regulated. States have justification for concern. New legislation should reflect the important role states have played.