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Some states leery of chemicals bill backed by Manchin

CHARLESTON, W.Va. -- A major rewrite of the way the nation regulates toxic chemicals is under fire from states that say the bill -- co-sponsored by Sen. Joe Manchin, D-W.Va. -- usurps their authority to set their own safety standards.

The debate over which level of government should take the lead on chemical safety comes after Manchin's repeated complaints that the U.S. Environmental Protection Agency oversteps its authority on mountaintop removal and other coal industry issues.

Manchin said Wednesday that his bill "forces the federal government to finally step up and protect the health and safety of all Americans, including those in smaller states like West Virginia, where there are just not sufficient resources to test and regulate the chemicals that need to be regulated.

"It will allow the EPA to take meaningful action against chemicals that pose a threat to human health and safety," Manchin told fellow lawmakers, "and it will allow state and local governments to weigh in on the whole process."

West Virginia environmental regulators are backing Manchin's chemical bill, a bipartisan but controversial effort the senator helped broker earlier this year to reform the long-criticized federal Toxic Substances Control Act, or TSCA.

On Wednesday, Mike Dorsey, chief of homeland security and emergency response at the West Virginia Department of Environmental Protection, testified in Washington, D.C., in support of the Chemical Safety Improvement Act.

"The public, the regulated community and those in state and local government need and deserve the most accurate and scientifically defensible information on chemicals that we can possibly have," Dorsey told lawmakers. "I think that is possible with this bill."

The bill would, for the first time, require the EPA to review the safety of all chemicals used in commerce. Currently, the TSCA allows the vast majority of chemicals to remain on the market without any evidence of their safety. The EPA has tested only about 200 of the 84,000 chemicals in the agency's inventory.

Word of the new bill surfaced in May and, on Wednesday, the Senate Committee on Environment and Public Works took testimony from more than a dozen representatives of industry, citizen groups and academia.

Committee Chairwoman Barbara Boxer, D-Calif., said she is concerned that the bill could roll back her state's landmark 1986 law to protect consumers from toxic materials. California officials also are worried that the bill could undermine the state's water quality laws and its efforts to combat global warming.

Michael Troncoso, senior counsel to California Attorney General Kamala D. Harris, testified about the matter during Wednesday's hearing. So did Ken Zarker, pollution prevention and regulatory assistance section manager at the Washington State Department of Ecology.

Troncoso submitted a letter signed by attorneys general in Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Oregon, Vermont and Washington state to "urge Congress not to undermine the traditional role of the states in protecting their citizens from toxic chemicals.

"The federal government must regulate chemical safety so that there is a minimum level of protection across the nation," Troncoso told lawmakers. "At the same time, we urge the committee to recognize and honor the long-standing authority of the states to act alongside the federal government to protect the health, safety and welfare of their citizens -- to act as laboratories of innovation in the area of toxics regulation and to tackle the problem of dangerous chemicals as a partner with the federal government."

On other issues, especially regarding EPA regulation of the coal industry, Manchin and the DEP have opposed strong federal involvement, saying states should be taking the lead on environmental protection issues.

When Manchin was governor, the DEP launched a lawsuit to challenge the Obama administration's crackdown on mountaintop removal mining, arguing in part that the EPA was interfering with the state's right to regulate the industry itself.

The state's most recent legal brief in that case, filed with the U.S. Court of Appeals for the District of Columbia, says EPA efforts have "ignored the role of states as the primary protectors" of water quality and that EPA actions have been a "direct affront to the state."

In his testimony, Dorsey said the bill at issue might be the "best and perhaps the last chance" for Congress to fix a chemical regulatory law that all sides agree has been broken for years.

"While it is difficult for me to say, as someone who has spent much of his professional life in the environmental protection business, [the] TSCA has provided a false sense of security to untold numbers of people in this country who have bought into the proposition that it was providing a safety net -- that it was testing and evaluating new chemicals before they could come on the market," Dorsey said. "We know that is not true -- and we know that it will be a difficult assignment if and when [the new bill] comes to pass -- but I think that we can all agree that it needs to be done. We owe it to our constituents."

Dorsey also told the Senate committee that he understands the concerns of other states regarding the chemical safety bill but that most states -- West Virginia included -- lack "the resources and/or personnel to develop and implement chemical testing programs of their own."

"Because of this, we look to the federal government to perform that important work for us," Dorsey said. "I understand the reason that the more fortunate areas have forged ahead on their own -- and I understand their concerns that their efforts not be undermined -- but I strongly believe that protective language is in place, or that stronger language can be forged for the rest of us."

Dorsey said West Virginia "has good reason to be concerned that we are able to maintain a level of independence" on chemical regulation, saying that the boom in natural gas drilling in the state might require the DEP "to evaluate and regulate chemicals used in the development and production of those reserves."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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