MONTPELIER — A host of industry representatives are pushing back against language inserted into a Senate health care bill late last week that would alter a 1-year-old law that looks to regulate toxic products in commercial products.
The Senate Health and Welfare Committee heard testimony from several people Wednesday looking to scrap the language added to S.139 on Friday. It would make changes to Act 188, which was signed into law last year by Gov. Peter Shumlin following an arduous back-and-forth process that was finalized in the waning hours of the previous biennium.
The law created a reporting mechanism for manufacturers that use certain chemicals in children’s products. Beginning in July of next year manufacturers that use chemicals designated by the state as “chemicals of high concern to children” must disclose information about those chemicals to the Department of Health.
It also created the Chemicals of High Concern to Children Working Group that would make recommendations to the commissioner of health about regulating designated chemicals.
But an amendment to S.139 approved by the committee Friday would make significant changes to the law. It would allow the commissioner of health to add chemicals to the list through rule making based on “credible, scientific evidence,” removing language in the law that calls for “the weight of” such evidence to be considered.
Opponents of the change say it could allow a single study to form the basis for regulating a chemical.
It would also change the authority of the working group. Instead of allowing the commissioner of health to adopt rules regulating the sale or distribution of children’s products containing such chemicals “upon the recommendation” of the working group, the commissioner could act “after consultation” with the group. It diminishes the oversight and purpose of the group, which includes members with varying viewpoints.
The amendment would loosen the standard for allowing the commissioner of health to act by changing the threshold from “children will be exposed” to “there is potential for exposure.”
And it also removes language calling for “a probability” that exposure or frequency of exposure to such chemicals could cause or contribute to adverse health impacts before the commission of health could act.
Several industry representatives, including William Driscoll, vice president of Associated Industries of Vermont, testified Wednesday against the changes.
“We are very concerned about the proposed amendments to that statute, even as it is being implemented,” Driscoll said. “We feel that however well-intentioned, the amendments … are unwarranted and actually undermine the statute.”
Allison Crowley DeMag, a lobbyist representing the American Chemistry Council, said the language undermines the process undertaken last year to craft Act 188. The law that was eventually enacted represented a deal, she said, and the amendment seeking to change it would “undue what was a very collaborative effort last session.”
“At the end of the day, everyone in this room, as far as I know, we all gave some, we all won some, but we all came to a deal. Part of that deal was implementing this working group that represented all different types of interests,” she said.
Crowley DeMag urged the committee and others supporting changes to the law to allow the law to be enacted as passed last year.
“The working group hasn’t even been appointed yet and here we are undoing what I thought was a very collaborative effort last session. I’m just really disappointed in the process,” she said. “If the chemical industry had come out and done something like this I know people would be very, very concerned about it. I think that we should just go forward with what we did last session, whether we liked it or not, and just move ahead with the process as it was outlined last session.”
Representatives of IBM and the Personal Care Products Council also testified against the amendment, while representatives from Seventh Generation and Vermont Conservation Voters testified in favor of the changes.
Sen. Ginny Lyons, D-Chittenden, vice chairwoman of the committee, said she is looking to make changes because of potential legislation in Washington that might undercut the state’s ability to regulate chemicals. Changes under consideration to the federal Toxic Substances Control Act could prevent the state from strengthening its law in the future, she said.
“We heard that the Congress is acting on TSCA to make changes which would hold states exactly where they are with respect to chemical regulation, or preempt us altogether, which I hope wouldn’t happen,” she said.
Lyons also said she is looking to enact language the Senate passed last year that was removed by the House before it became law. Because the session was ending, the two chambers did not go to a conference committee and the Senate had to settle for the House version, she said.
“We wanted to approve the language that was passed in the bill last year to ensure that our department of health can do its work,” she said. “This opens a conversation that we were unable to have last year because the bill went right up to the end.”
Driscoll said the there is no need for the state to rush because the changes being considered to the federal law would preempt state actions taken after Jan. 1 of this year. And the federal legislation is not focused on the “procedural matters” addressed in the committee’s new language, he said.
“Arguments that these amendments must be rushed into enactment to avoid federal preemption are without factual basis,” he said.
Others see the issue differently, including VPIRG. Executive Director Paul Burns said there was never a deal in place to pass the law.
“Right up until the end the industry lobbyists were opposing it and were opposing the Senate for suspending the rules to take it up. This notion that there was a deal, and certainly a deal that included an understanding that nobody would ever come back to try to change the law, that just doesn’t exist. That’s just a fantasy,” Burns said.
He said the “modest changes” added to S.139 are intended “to make a law that is designed to protect kids from toxic chemicals a little more effective.”
If changes are made to the federal law the state would be prevented from taking any action against chemicals that the federal Environmental Protection Agency considers regulating for a seven year period, Burns said.
“It puts it on list, so seven years later they may decide to regulate or they made decide not to. In all that time we would be prevented from taking any action,” he said.
By acting now, the state may be allowed to continue to regulate chemicals at the state level, depending on what Congress passes, according to Burns.
“That could be grandfathered in … if we could make it happen soon enough,” he said.
There are differences of opinion within the committee’s 5-member ranks. Sen. Dick McCormack, D-Windsor, said he believes the committee’s amendment is “superior to the language that’s in the law.”
However, McCormack also said he believes “a deal is a deal,” and making changes now could hinder future efforts to craft collaborative policy in the future.
“If a deal was made I’m reluctant to just say, ‘Well, it was a bad deal so now we’re going to make a new deal,’” he said. “I’ve got to roll this one around in my mind for a little while.”
Lyons challenged his position.
“So we’d never change a law again? I’m going to push you on that one,” she said.
Lyons said the Senate’s position last year was abandoned because of the time crunch.
“The deal, as it left the Senate, was all consumer products were being regulated. That was a deal I felt very firm about,” she said. “Some of the changes that were made in the House, I think, have been identified here as being problematic.”
First-term Sen. Brian Collamore, R-Rutland, indicated he supports keeping the existing law as is.
“I do think that you had disparate parties brought together. There was concession on both sides, an agreement was reached and Act 188 was passed,” he said. “You haven’t allowed the process to work yet.”
Meanwhile, Sen. Anthony Pollina, P-Washington, indicated his willingness to amend the law. Committee Chairwoman Claire Ayer, D-Addison, was absent Wednesday due to a family emergency.
The committee is expected to make a final decision on whether to seek changes to Act 188 this week.