Risk Policy Report, March 6, 2007

WASHINGTON EMERGES AS TEST FOR STATES' PUSH TO BAN FIRE SUPPRESSANT

[Rachel's introduction: If the Washington [state] bill passes, "it would have a big impact" on other states debating similar bills... The industry source says officials are closely following the state efforts. "I am watching all the state bills very closely, every day..."]

By Adam Sarvana

Legislation pending in Washington state to ban a controversial flame- retardant chemical is emerging as a test case for similar legislative efforts pending in several state legislatures around the country, industry and environmental sources say.

The multi-state effort to ban decabrominated diphenyl ether (decaBDE) could be bolstered by a recent EPA decision to tighten its safe exposure level for the chemical, which is the only remaining commercially used substance in a class of chemicals known as polybrominated diphenyl ethers (PBDEs). DecaBDE is used in a variety of consumer products, plastics and textiles as a flame retardant.

EPA recently tightened its reference dose (RfD), used to set certain environmental and health regulations, from .01 milligrams per kilogram of body weight per day (mg/kg-day) to .007 mg/kg-day in a draft toxicological review released last December. The RfD is the amount that the average person could be exposed to without anticipating adverse health effects. RfDs are used in regulatory determinations to ensure that regulations, such as drinking water standards, are sufficiently protective of human health (Risk Policy Report, Feb. 13, p14).

Supporters of the bills to ban decaBDE argue it poses similar heath risks to other PBDEs, which are already being phased out in Europe and the United States. However, industry opponents point to studies they say indicate decaBDE is safe and argue it should not be thrown out in favor of replacements that are less well understood.

PBDEs as a class include the phased-out penta- and octabromodiphenyl ethers, which industry consented to stop using in the U.S. in 2004 under an agreement with EPA. DecaBDE was not addressed in the agreement and has become a contentious issue as lawmakers, health officials, environmental groups and industry continue to debate its proper regulatory and scientific status. California originally moved to ban decaBDE along with the other common varieties in a 2003 law but stripped the provision before the bill was ultimately signed by then- Gov. Gray Davis (D).

Now Washington, California and Minnesota are among seven states in various stages of considering similar bills to phase out or mandate safer alternatives for decaBDE, with Washington the furthest along.

According to several sources, the Washington state bill appears headed for enactment after sponsors scaled back some of the measure's requirements. The Washington state House passed H.B. 1024 Feb. 16, which would ban decaBDE in mattresses after January 1, 2008, and require the state environment and health departments to review risk assessments and data on the use of commercial alternatives to decaBDE and report to the state legislature by December 15, 2008. Relevant documents are available on InsideEPA.com.

The measure, sponsored by state Rep. Ross Hunter (D), who has sponsored previous versions of the bill, appears headed for enactment. 10 House Republicans joined with 61 Democrats in passing the bill, while key advisers to Gov. Christine Gregoire (D) are endorsing it.

Jay Manning, the head of the state's Department of Ecology, urged the legislature to quickly approve the measure before its April 22 deadline. "The PBDE flame retardant legislation represents a comprehensive and common sense approach to protecting public health and our environment without sacrificing fire safety. It's based on science and thorough study. Delaying this action means the continued buildup of Deca in people, animals and the environment. Let's not wait," Manning wrote in a recent editorial.

A source with the National Caucus of Environmental Legislators (NCEL) says the current version has a better chance of passage than prior versions because sponsors broadened exemptions, phaseout timetables and provisions for expert input on implementation. The bill "has been crafted to eliminate opposition from everyone except the bromine industry," making passage more politically likely, the NCEL source says.

An industry source suggests that the bill may be enacted, but cautions that banning the chemical could have harmful consequences. "This bill is designed to [allow environmental activists to claim a political victory] regardless of the consequences." The source argues that "there are significant economic impacts to the state in banning a product and enforcing that ban," and that the state Department of Ecology "has said it cannot identify an alternative to Deca that is safer."

Many of the state bills include several exemptions from the phaseout, which is scheduled for Jan. 1, 2008, in versions being considered by Montana, Illinois, Minnesota and Washington and for Jan. 1, 2009, in a version being considered by Hawaii. Not all bills would extend the phaseout to the same number or types of products, but all include at least a phaseout in mattresses and all versions require the state to broadly study alternatives.

The exemptions in the Minnesota legislation, which would mandate the most extensive phaseout, include transportation vehicle parts, charitable donations, items with specific military or space program applications, recycled foam carpet cushions and medical devices. An amendment offered to the bill by one Minnesota state lawmaker would create a process to apply for specific exemptions subject to a series of findings by state officials and vows by the petitioner company to phase out PBDEs to the extent practicable.

If the Washington bill passes, "it would have a big impact" on other states debating similar bills, the NCEL source says. "Once California enacted a penta and octa ban [in 2003], several other states followed. Once one state takes a first step it's easier for others to follow."

An environmentalist source agrees, saying, "We'll be getting an indication quickly from Washington" on whether the issue is resonating with state lawmakers. If the bill passes, "it will increase the momentum of all states considering this." The source cautions, however, that "each state is different and you can't predict from one state victory or failure what will happen."

The industry source says officials are closely following the state efforts. "I am watching all the state bills very closely, every day," the source says. The source adds, "It's hard to say what happens if one state passes legislation," arguing that decaBDE is "the most studied flame retardant in history" and has not been shown to cause significant health problems in humans. Signing such a bill into law "would set a bad precedent in substituting an unknown substance for a known substance" -- because many state versions of the bill require industry to use alternatives after the decaBDE phaseout -- "and that's not good public policy," the source says.