Thanks, but No Thanks: Bill to Carve Special Exemptions from Toxics Law is a Turkey

Like every American, I’m thankful to live in a country that has a reasonably well-functioning democracy – where we can vote for our President and representatives in Congress – where we are not subject to totalitarian or military rule.  Recognizing our country faces many problems and challenges, we are fortunate to have a political system where at least theoretically those problems can be resolved, and challenges overcome, through vigorous public discussion, debate and voting.

That’s at the macro level.  I’m less thankful that too often the process – and here I’m speaking specifically of the national legislative process – is (mis)used to advance poorly considered legislation through means that subvert the established system, which is based on openness, deliberation, public input, and public accountability.  I’ve written previously about one such example – the chemical industry’s efforts to derail the biennial Report on Carcinogens prepared by the National Institutes of Health.  

Today I’m writing about an equally misguided effort – to amend the Toxic Substances Control Act (TSCA) to exclude from its jurisdiction any chemical when it is to be used in any component of firearms or fishing tackle.  As I described in a recent post, this effort was prompted by petitions -- filed by the Center for Biological Diversity and a large number of science and conservation organizations -- asking the EPA to use its existing authority under TSCA to ban or otherwise regulate the use of lead in ammunition and fishing tackle.  The petitions were motivated by the extensive scientific evidence of harm to wildlife and the environment from these widespread uses of lead, as well as some evidence of potential harm to human health.  For reasons explained in the previous blog, the EPA denied those petitions, indicating that it had no intention of taking the actions requested in the petitions.  CBD and the other organizations have challenged those decisions in court, and the litigation is pending.  That entire sequence -- the petition, the petition denial, and the legal challenge -- is fully in keeping with the process established by Congress under TSCA in 1976. 

Nevertheless, members of Congress often feel compelled to get involved in matters that are still pending in the Courts and to address “problems” – here defined as the potential that EPA might take action to reduce the use of lead in bullets and/or fishing tackle to protect wildlife, the environment and human health – that are either extremely remote or don’t actually exist at all.  And too often, these legislative efforts – if enacted – would have real and negative consequences much greater than the problem they are intended to solve.

Which brings us to the legislation introduced by Senator Jon Tester (D-MT), -- scheduled for a vote on the Senate floor next Monday, when Congress returns from its Thanksgiving Recess.  The legislation, known as the “Sportsmen’s Bill” contains some worthwhile features that many environmental and conservation organizations support. For example, it reauthorizes authority allowing federal agencies to conserve sensitive habitat through land purchase agreements, and it will conserve additional wetlands needed by migratory birds by allowing the Fish and Wildlife Service to expand the sale of duck stamps.  Unfortunately, the bill also contains a poison pill provision that would exclude certain uses of lead, perchlorate and other toxic chemicals from the jurisdiction of the Toxic Substances Control Act (TSCA). 

Pistols, revolvers, other firearms, shells and cartridges (whether for hunting, sport shooting or military uses) are already excluded from TSCA’s jurisdiction but Senator Tester’s bill would significantly expand the current exclusion.  It would specify that the TSCA exclusion applies to any chemical in any components – such as propellants – used in firearms or ammunition.  And it would further extend that exclusion to include any chemical in any item of fishing tackle. The Tester provision excludes any chemical used in any of those items– or any components of those items “without limitation” – from TSCA’s jurisdiction, both prior to their being put into the item/component and over the lifecycle of the chemical.  In short, it would prevent the Environmental Protection Agency from taking any action under TSCA to address uses of any chemical, including but not limited to lead – even where they may pose a substantial risk to human health and the environment. (In response to concerns about the provision, the only change that has been made is to clarify that the exclusion does not extend to other uses of the chemical that are not related to firearms or fishing tackle or their component parts.)

There is extensive scientific evidence available documenting the harm posed to wildlife and the environment from spent lead in ammunition used for hunting, sport shooting and fishing tackle. The threat of harm extends to human health, primarily through the risk of consumption of fragments in shot game. Several states have issued warnings that pregnant women and young children should not consume venison hunted with lead bullets. Over several decades our country has gradually moved away from many uses of lead that have resulted in widespread exposure, including in gasoline, paint, drinking water pipes, consumer products and in wheel weights.  In light of this widespread and documented recognition of the harms of lead, the benefits of removing it from our environment to the greatest extent possible, and the fact that there are effective non-lead alternatives available for most current uses, it is disturbing to consider that the Senate may vote to protect lead, rather than protect the public from lead.

The environmental contamination from lead – and the consequent risk to public health – is not limited to individual uses such as hunting and sports shooting. In June, ATSDR published a Health Consultation on lead contamination at Tyndall Elementary School, which overlaps in part with a former shooting range at Tyndall Air Force base. ATSDR supported a Time Critical Removal Action after concluding that children were at high risk of consuming lead shot that remained on the school grounds.

And lead is only one of the toxic chemicals used in ammunition and fishing tackle that would be exempt from EPA’s TSCA authority under this bill. Another is perchlorate, a substance widely used in military munitions as a propellant. Perchlorate is a widespread contaminant of drinking water and food across the country. It is frequently found in many types of food including meats, grains, dairy, fruits, vegetables as well as baby foods and mother’s milk. Perchlorate impairs the thyroid’s ability to produce thyroid hormone, which is critical for normal human growth and development, including brain development. 

The reach of the provision goes far beyond lead, perchlorate, or any other particular chemical, because it would apply to any existing chemical and any new chemical, no matter how toxic, whether it is a carcinogen, or persistent, or bioaccumulative, endocrine-disrupter, neurotoxin, whatever – as long as it is used in one of those articles or in any of the components of any of those articles.

If these chemicals are exempt from TSCA when used in ammunition or fishing tackle EPA would no longer be able to require:

  •  Biomonitoring of people to determine the levels  of contamination arising from uses in ammunition and fishing tackle of lead, perchlorate or other toxic substances;
  • Chemical manufacturers to report significant new uses of those substances in ammunition and fishing tackle – including such uses that could increase the volume of production and pose greater risk of human exposure.   For example, if a producer of primers for ammunition wanted to begin using mercury in  a new component – EPA would be barred from obtaining information on that new use, or tracking or restricting that use;
  • Reporting requirements for chemical manufacturers who obtain information “which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment” arising from uses of chemicals in ammunition or fishing tackle;
  • Reviewing and potentially restricting the use of any new chemical to be used in ammunition or fishing tackle.  Under the provision of the Sportsmen’s Bill, if a chemical manufacturer develops a new chemical for use as a component of ammunition or fishing tackle it would be exempt from pre-market notice or scrutiny by EPA.  This is a particularly reckless and potentially costly step.

The Tester provision will remove EPA authority to track the environmental and health impacts of new or existing chemicals – or take steps to reduce those impacts – for uses in ammunition and fishing tackle, which are well-documented sources of pollution.  It would be a significant step in the opposite direction of what the public desires.  There is simply no justification for making any of these changes to our nation’s chemical control law, and particularly for rushing it forward without the benefit of any scrutiny or comment -- by the Senate itself or members of the public.

Instead of adding loopholes to the current law, the Senate should drop the TSCA provision from Senator Tester’s bill, or postpone consideration and voting until the provision can be publicly and properly vetted through hearings and mark-ups in the appropriate committee. The Senate could better use its time during the lame duck session to debate and pass the Safe Chemicals Act, which would strengthen protections from toxic chemicals to protect public health.

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