Maine’s pioneering state law to remove toxics from consumer products could be undermined depending on which of two proposed reforms of federal chemical policies emerges from Congress.

Since 2008, Maine has published a list of more than 1,700 “chemicals of concern” under the Kid-Safe Products Act and taken steps to either track or restrict the use of a handful of chemicals in products, especially those used by children. Maine and a handful of other states adopted their own systems to regulate chemicals in everyday consumer products in response to frustrations over a nearly 40-year-old federal chemical safety law widely regarded as ineffective.

Green Toys, a San Francisco-based company, makes toy tugboats from recycled plastic milk containers that are free of BPA, PVC and phthalates. Associated Press file photo

But now environmental and health groups are divided over two competing proposals pending in Congress to reform the federal Toxic Substances Control Act of 1976. While both versions would strengthen the program, some groups in Maine and Washington, D.C., are concerned about how and when federal action on chemicals would begin to trump state regulations on the substances.

Mike Belliveau, executive director of the Environmental Health Strategy Center in Maine, said the Senate version of the bill would prohibit states from taking action on chemicals once the U.S. Environmental Protection Agency begins studying whether a chemical is dangerous. That process likely would take years, Belliveau said, and could preclude Maine from moving forward with actions on chemicals the state already has deemed as a threat to the public under the 2008 law.

The House version, on the other hand, would only preempt state actions once the EPA has made a decision on a chemical, thereby allowing states to fill the gap with their own policies. Both bills grandfather state-level regulations of chemicals already in place before the reforms take effect.

“Not only is it bad public policy relative to how the federal government has treated the states on environmental policy, but presently (the Senate bill) creates this regulatory void for a number of years where the states cannot act” during the EPA review, Belliveau said. “It essentially gives industry a free ride.”

But supporters of the Senate bill say the legislation has more regulatory teeth than the House version to keep hazardous chemicals out of products by requiring the EPA to affirm the safety of a new chemical before it enters the market. States also could request a waiver allowing them to move forward with restrictions while the EPA is reviewing a chemical, and existing state actions would be protected.

“The grandfathering (clause) is something we fought very hard for because states have stepped into this breach and done this work because the federal government wasn’t,” said Richard Denison, lead senior scientist at the Environmental Defense Fund, which was heavily involved in negotiations with lawmakers and industry on the Senate bill. “So we are making sure the work the states have done is not wiped off the books.”

Maine became one of the first states to take steps to identify and regulate potentially hazardous chemicals when lawmakers passed the Kid-Safe Products Act in 2008. The law allows the state to require disclosure of products containing designated “priority” chemicals and creates a framework for banning the sale of products made with certain chemicals.

To date, the Maine Department of Environmental Protection has required manufacturers to notify the state whenever products contain one of five “priority” chemicals: bisphenol-A, cadmium, mercury, arsenic and nonylphenol/nonylphenol ethoxylates. Additionally, the state prohibited the sale of reusable food and beverage containers, baby food packaging and instant formula packaging containing bisphenol-A, or BPA, an endocrine-disrupting chemical linked to developmental changes in children that is used in plastics and liners.

As an example of potential impacts from the federal reforms, the Maine DEP this year began requiring the disclosure of products containing four types of phthalates, which are softening agents used in plastics. But the rule did not go as far as Maine environmental and health groups had wanted – a recurring criticism of the LePage administration’s use of the Kid-Safe Products Act. And if the EPA were to begin evaluating phthalates, the Senate version of the bill could preclude the state from imposing additional restrictions.

National organizations such as Safer Chemicals, Healthy Families – a coalition of more than 450 businesses and organizations – also have criticized that early preemption provision of the Senate bill, which passed the chamber in a unanimous consent vote last week. The House passed its version 398-1 in June.

Andy Igrejas, the coalition’s director, also suggested that the Senate version of the bill would make it more difficult for the EPA to “identify and intercept” imported products that contain a hazardous chemical.

“If reform is going to be credible, tricky, sneaky provisions like this will have to be removed,” Igrejas said in a statement. “Luckily, it is not too late. When Congress reconciles the House and Senate versions, they should focus on the fundamentals of reform and simply empower and direct EPA to identify and restrict toxic chemicals.”

Congress passed the Toxic Substances Control Act in 1976 as a way to keep new, dangerous chemicals from entering the marketplace. But the law has never lived up to its name, in part because the EPA’s enforcement capabilities are limited and the agency must pick the least burdensome way of regulating a chemical.

A February 2010 report from the EPA’s own Office of the Inspector General said the program was beset by inadequate assessment, oversight and transparency. The law also is severely limited by the fact that many manufacturers don’t submit chemical toxicity data to the agency.

“Oversight of regulatory actions designed to reduce known risks is a low priority, and the resources allocated by EPA are not commensurate with the scope of the monitoring and oversight work,” the inspector general report states. “In addition, EPA’s procedures for handling confidential business information requests are predisposed to protect industry information rather than to provide public access to health and safety studies.”

At the time of its passage in 2008, Maine’s Kid-Safe Products Act was touted by supporters as a necessary step to protect children from toxic chemicals in the face of a toothless federal law. Denison, the EDF scientist, said while the Senate’s proposed reforms would preempt state restrictions earlier in the process, the House’s preemption clauses are more sweeping because they would prevent states not only from restricting use of chemicals but even from requiring manufacturer disclosure once the EPA has taken action on the chemical.

Congressional negotiators are expected to revisit the issue next year.

U.S. Rep. Chellie Pingree, a Democrat who represents Maine’s 1st District, said she was pleased both chambers of Congress were debating and passing “long overdue” reforms to the federal law. Pingree has been vocal on the issue and her daughter, former Maine House Speaker Hannah Pingree, D-North Haven, led the push to pass and implement the state’s Kid-Safe Products Act.

“But the bills do have some problems,” Chellie Pingree said in a statement. “For example, the Senate bill actually makes it harder to block chemicals used in consumer products coming in from other countries that are already illegal here. And it also takes away some of the ability of states like Maine to ban chemicals we find to be dangerous.

“So the House and Senate bills are a step forward, but I hope the final version fixes some of these significant problems, especially with the Senate bill.”

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