By Senator Michael O. Moore
In the face of daunting challenges, Massachusetts has never hesitated to take the lead and pass laws intended to protect its citizens. From improvements in highway and traffic safety to recently proposed domestic violence legislation, the Commonwealth has always emphasized the security of its residents. This practice has continued as states begin to address issues stemming from the use of dangerous toxic chemicals. Unfortunately, I have grave concerns about two pieces of federal legislation currently being debated in Congress; the Chemicals in Commerce Act filed in the House, and SB.1009 Chemical Safety Improvement Act in the Senate. Both of these bills would significantly hinder the ability of Massachusetts to protect its residents and the environment from toxic chemicals.
The current federal law governing the manufacturing, transportation, storage and use of toxic chemicals is the Toxic Substances Control Act (TSCA). Enacted in 1976, and lacking a significant revision since, the TSCA tasks the Environmental Protection Agency (EPA) with overseeing and enforcing chemical safety from production to implementation. Due to ineffective language and the lack of adequate updates, the TSCA fails to offer the agency the sufficient tools or authority to be successful.
In order to regulate a chemical, the EPA must prove a compound poses an “unreasonable risk” to public health or the environment. The standards for this burden of proof are exceedingly high, and the agency has almost no authority to require manufacturers to provide safety information, conduct further tests, or adhere to a reasonable time frame. Over 700 new chemicals are created each year, and many are released by the EPA, simply because of the difficulty in proving “unreasonable risk.” This regulatory failure presents serious risks to the health and safety of all Americans, as potentially dangerous chemicals are approved without adequate safety testing or public oversight.
The TSCA represents a grossly inadequate chemical policy. In response, states legislatures including Massachusetts have passed a wide range of laws to supplement federal regulations and provide the best possible protection for their citizens. While I am heartened by our progress, my concern for chemical safety is elevated by the two bills being considered at the federal level, which threaten the ability of every state to pass and implement chemical regulations.
First, the proposed legislation would likely preempt many current state laws, rendering them useless. Additionally, both bills could prevent states from regulating chemicals in the future. Between the volume of new chemicals and the lax federal standards, handcuffing state legislatures could be particularly devastating. If this language were to pass, all state legislators and agencies would be effectively prohibited from making determinations about the basic safety of the public and the environment.
As evidenced by a recent chemical spill in West Virginia that left 300,000 people without access to clean water, and a chemical explosion in West Texas that killed 12 firefighters and two others, the dangers of chemical incidents are growing. But these problems aren’t confined to faraway states lacking Massachusetts’ dedication to safety and the environment. Just four months ago around 100 gallons of a highly flammable and possibly carcinogenic chemical called styrene was spilled at the Grafton-Upton Rail Yard in Upton. Thanks to the quick response of local and state first responders and chemical safety experts the damage was quickly contained, with only a few complaints of chemical odors or irritated eyes and skin. We owe our safety to the skill and expertise of those municipal and state workers and officials who were entrusted with the cleanup, despite the fact that the rail yard is operated under a claim federal control/preemption.
The chemical responsible for the contamination in West Virginia is known as 4-methylcyclohexane methanol, and is used to “clean” coal, but because of the TSCA limitations almost nothing is known about the long-term safety implications of the compound. This ignorance would be continued and intensified by the two laws being debated at the federal level. Public health and environmental risks are significantly increased by the creation and widespread use of toxic chemicals. Sufficient testing before production is imperative because of the inescapabilty of these chemicals in everyday life; they’re used in the manufacturing of food and beverage containers, electronics and basic fabrics.
Preemption of state law could include a number of Massachusetts statutes, including those that require proper chemical labeling, ban mercury, and outlaw the use of hazardous material in “any toy or article intended for use by children.” As demonstrated by the recent incident in Upton, toxic chemical incidents continue to represent a threat to Massachusetts citizens, even with the enhanced state safety measures. Beyond the danger of incidents to ordinary residents, the laws have the potential to further endanger public safety employees and first responders who will be forced to work without essential information or expertise. To strip Massachusetts residents of protections enacted by their elected officials would be a serious breach of state sovereignty and would leave everyone more susceptible to increased harm from toxic chemicals.
It is essential to recognize that without proper regulation, proliferation of these chemicals will result in higher risks to our public health and the environment. The Commonwealth cannot be satisfied with ineffective federal regulations, and cannot afford for Congress to jeopardize future safety regulations through the passage of these laws. The next incident may not involve styrene or 4-methylcyclohexane methanol; it may be worse, and without the ability to regulate chemical safety Massachusetts would not be able to safeguard our citizens or our environment. It is essential that this bill is defeated, and I urge you to contact your federal representatives and ask them to lobby their colleagues to vote no on this issue.