Will the Senate Vote to Exempt Lead, Perchlorate, and other Chemicals from TSCA?

When the Senate returns today for the start of its lame duck session, the first bill it is expected to take up is Senator John Tester’s “Sportsmen’s Act of 2012.” The bill S. 3525, is really a package of different issues rolled together, including provisions to expand access to federal lands for hunting and fishing and to encourage habitat protection.  I have no opinion or comment about most of the bill, but one provision is very troubling and should be dropped or, at the very least, significantly narrowed by the Senate before it votes on the bill.  That provision could potentially create a broad exemption for chemicals under the Toxic Substances Control Act (TSCA).

Here’s the basic issue: in 2010 a number of environmental groups, including Center for Biological Diversity (CBD), petitioned the EPA to regulate the use of lead shot, bullets and fishing sinkers to reduce the amount of lead poisoning of wildlife that takes place as the result of those uses.  EPA denied the petition regarding the lead in shot and bullets, on the grounds that TSCA contains a provision that excludes certain gun-related items --pistols, revolvers, “firearms other than pistols and firearms,” “shells and cartridges” -- from TSCA’s jurisdiction.    The EPA interpreted that provision to also exclude agency jurisdiction over ammunition.  CBD and the other groups that petitioned EPA believe the TSCA exclusion does not extend to the chemicals used in ammunition in guns, most importantly, lead.  EPA denied the petition regarding the use of lead in fishing sinkers essentially on the grounds that states were already handling the issue and that federal action was unnecessary and would be too burdensome. For reasons not worth relating here, CBD filed a second petition on the lead in ammunition which EPA rejected and the issue is now in the federal courts.  It is unclear whether the court will actually rule on the substance of the dispute or on various procedural matters.

Presumably, Senator Tester’s provision is intended to answer the question the courts are currently considering and state plainly that EPA does not have the authority to regulate the use of lead in ammunition and to expand that exclusion to include the use of lead in fishing tackle. Unfortunately, as written, it is not clear that the intent is that narrow or, more importantly, that the effect will be.  In the first place, nowhere in the provision does it limit its scope to lead.  Second, the provision does not limit the scope of the exemption to ammunition, such as shot or bullets.  In fact, it reaches beyond shot and bullets to include “any component” of firearms, shells and cartridges, “without limitation” including “projectiles, propellants and primers.” Third, the exclusion for components of ammunition is not limited to the use of such ammunition for hunting.  Fourth, it is not even clear, as drafted, if the exemption for substances used in ammunition only applies to those specific uses, or if they are entirely excluded from the jurisdiction of TSCA no matter how they are used.

As a result, if enacted, Senator Tester’s provision, as currently drafted, could apply to other kinds of chemicals that are used as other components in ammunition, and to uses of those chemicals that are not limited to hunting.  Take, for example, perchlorate, a “component” of ammunition that would be excluded from TSCA under the Tester provision.  Perchlorate is a chemical over which a great deal of debate has taken place regarding its potential adverse effects on human health.  It is also a widespread – and currently unregulated -- contaminant of drinking water, and is found in many kinds of food around the country as well as cow's milk and breast milk.  Much of the perchlorate contamination around the country is believed to come from military bases.   There are other problematic chemicals used in similar ways by the military.

If it is not Senator Tester’s intent – or not the intent of the majority (or supermajority) of the Senate -- to exempt more than lead shot, bullets and sinkers from TSCA, then it needs to amend the provision to make its intent crystal clear.  If the Senate does intend such a sweeping, weakening change to TSCA, it should not do so without a more careful consideration of the potential consequences, and a greater opportunity for the public, policymakers, and the Senators themselves to discuss and the debate the matter.

(Note: there is an even broader version of this provision that has been introduced in the House, perhaps not coincidentally, by Rep. Denny Rehberg – a leader in the chemical industry’s effort to suppress the National Institute of Health’s biennial Report on Carcinogens -- who just lost his election bid to unseat Senator Tester).