Let Them Eat Lead (and Drink Whatever Replaces Perchlorate)

As the Senate prepares to vote on Senator Tester’s “Sportsmen’s Bill” this afternoon – and the issue had some coverage in today’s Washington Post -- I’ll take this opportunity to correct a few mistaken notions that have been offered about the scope and potential effect of a key provision in Senator Tester’s bill, as well as the need.  I’ve written previously -- here and here -- about the Tester provision, which will expand an existing exclusion from the Toxic Substances Control Act (TSCA) to include firearms, components of firearms and ammunition, and fishing tackle.

First, there is a clear effort to manufacture a sense of urgency to enact this provision, and to flame the fear of EPA “overreach” which has no grounding in reality.  EPA has already rejected citizen petitions to use its TSCA authority to regulate the use of lead in ammunition or fishing tackle.  Twice.  One advocate for the TSCA exemption stated in the Post story: “there’s a genuine fear of an EPA overreach on this.”  The fear may be genuine, but the basis for it is 100% artificial.

Second, support for the Tester bill, and the TSCA provision in particular, is not some kind of litmus test for whether or not you are “a friend of the sportsmen.”  I don’t hunt, and I’ve only done a little bit of sport shooting and fishing.  (On days like these I’d rather be off doing either than watching the sausage machine grinding in Washington.)  But I had occasion to speak to a couple of serious hunters – both NRA members – in the last year about this issue.  It came up tangentially, but both of the men I spoke with – one from Vermont and the other from Virginia – expressed the view that there was no reason to use lead in bullets or shot for hunting or sport shooting and that regulating or eliminating lead for those uses was no big deal.  Now, one of these guys was very clear that he did not support President Obama and specifically one of his concerns was about the potential for restrictions on his right to own guns, but the idea of eliminating the use of lead in bullets was a no-brainer.  Two people isn’t a representative sample of course, and maybe every other member of the NRA and the Teddy Roosevelt Conservation Partnership except the two I happened to meet at random are strongly of the view that they can’t truly be free unless lead can be guaranteed for use in firearms, ammunition and fishing tackle – as opposed to in gasoline, paint, water pipes, toys and every other use of lead that we have reduced or eliminated to protect the public. But I doubt it.

Third, none of the advocates for the Tester provision in the Post-story – including the spokesman for Senator Tester’s office – expressed one whit of concern for the actual impacts of lead on wildlife, or people potentially exposed to lead from consuming meat containing lead fragments.  One advocate noted that elemental lead in fishing tackle is less toxic than other forms of the metal.  The truth is that all lead is toxic, and none is safe.  Are supporters of the provision really trying to make the case that lead is not a problem for human health and the environment?

Nor did the supporters address the broader concerns about the Tester provision beyond its impact on lead – it applies to any other chemical used in firearms, ammunition and their components as well as fishing tackle, and removes TSCA authority from all those uses.  That narrow thinking about this provision and its effects is likely to prove very costly in the long run.  There is nothing in Senator Tester’s TSCA provision -- or the underlying part of TSCA that it is amending – that limits the scope of the proposed exclusion to just lead.  The provision would be both unnecessary and bad policy even if it was limited to lead, but it isn’t.  In fact, the Tester provision is explicit in not limiting the scope of its exclusion.   The current TSCA exclusion applies to pistols, revolvers, firearms other than pistols and revolvers, shells and cartridges.  The Tester provision would add to this list: “any component of any such article when included in the article including, without limitation, shot, bullets and other projectiles, propellants, and primers” as well as fishing tackle as defined in part of the IRS code, an entirely new category of uses to be excluded from jurisdiction of the law.

Perchlorate is one chemical that is used as a propellant in shells and cartridges.  To the extent that the Tester provision removes EPA’s authorities under TSCA for lead in firearms, ammunition and its components, and fishing tackle, it would also be removing them for perchlorate – and any other chemical.  Senator Tester’s staff appears to have thrown out a red herring when talking to the Post on this point.  Of course his bill will not mean that the EPA can’t still set a drinking water standard for perchlorate under the Safe Drinking Water Act (something NRDC supports).  Nobody ever suggested otherwise.  But it does mean that its TSCA authorities won’t apply. 

The loss of TSCA jurisdiction and its consequences might be more clearly illustrated when you think of a potential new chemical that could be a substitute for perchlorate.  Under the current TSCA, EPA has some authority for reviewing new chemicals before they enter into the stream of commerce.  Those authorities are limited and flawed, and need to be strengthened as part of TSCA reform legislation – the Safe Chemicals Act (kudos to Senator Tester for co-sponsoring that important legislation, and for doing so while up for re-election in a highly competitive race no less).

Nevertheless, there is no question that the military is looking for ways to reduce or eliminate its use of perchlorate, with effective substitutes.  Now, suppose that a chemical company develops a new chemical substance that it thinks will work as an effective substitute for perchlorate in rocket fuel and for its other uses as a component in ammunition and in shells and cartridges.  That chemical could be 100% benign and non-toxic – the magic bullet as it were – or it could cause cancer and learning disabilities (like lead does), or perhaps be a PBT -- persistent, bioaccumulative, and toxic, or be an endocrine (hormone) disrupter, like perchlorate.  Under Senator Tester’s provision, EPA would not have an opportunity to review the chemical before it was put into use – would never even have to be given notice from the chemical manufacturers and would never have an opportunity to try to obtain additional information or restrict or prevent its use.  Ultimately, that toxic substitute could end up polluting our water supply and contaminating our food. Of course, EPA would still have its existing authority (but perhaps never the political clout necessary) to set a drinking water standard after millions of people have already been exposed, including babies in utero.  But one could argue that it would be better to retain EPA’s TSCA authority to at least receive notice and ask questions about that new chemical at the front end of the process rather than rely on its authority to clean up the problem – at greater expense and after potential harm to human health – years or decades later.

Last, but not least, regarding the process for considering this provision – getting clarification of its purpose, need, scope, and potential effects – there has been none.  The misleading or ill-informed statements have not been subject to scrutiny, verification, or debate, whether through hearings, a mark-up of legislation, or an opportunity for debate or amendment on the floor of the Senate.  Typically, a bad process leads to bad legislation, and that is certainly true here.  While that might be more excusable in the case of a true emergency, in this case, there isn’t even a decent argument for urgency, since the EPA has already made clear its intent not to regulate the uses of lead in ammunition or fishing tackle and is in fact fighting in federal court to defend its decision to do nothing.

The dissembling skills of the advocates for the TSCA portion of Senator Tester’s Sportsmen’s bill are first rate, but they don’t alter the facts.  It is a bad provision that does not benefit the public and will likely hurt it in the long run.  The unwillingness of its supporters to undergo the most basic steps of review, debate, and amendment at any level of the Senate demonstrates how weak they know their case to be.