James V. Aidala Quoted in Inside TSCA Article “Former Official Says PFAS Patchwork Shows Failures Of TSCA Preemption”
On November 11, 2021, James V. Aidala, Senior Government Affairs Consultant, Bergeson & Campbell, P.C. (B&C®), was quoted by Inside EPA’s Inside TSCA regarding state regulations of per- and polyfluoroalkyl substances (PFAS).
A former EPA toxics chief says Michigan’s new executive order limiting purchases of products made with per- and polyfluoroalkyl substances (PFAS) not only expands a nationwide patchwork of state-level PFAS policies, but shows that the reformed TSCA’s preemption provision “works on paper, but rarely works in practice.”
Michigan Gov. Gretchen Whitmer (D) recently ordered state procurement officials to give preference to items “that do not contain intentionally added PFAS,” and to only purchase goods that do contain them “where there is not a comparable alternative available or no proposals have been submitted for a product free of intentionally added PFAS.”
That order adds Michigan to a growing wave of states seeking to limit distribution of the chemicals within their borders. But officials have taken several approaches to that goal, ranging from Maine’s broad legislative ban to more targeted limits on certain uses in California, fees and use-reduction planning mandates in Massachusetts, and now Michigan’s shift in government purchasing.
And such policies have spread despite Toxic Substances Control Act (TSCA) provisions added in 2016 that allow EPA to preempt state-level chemicals rules with federal action. Stakeholders had hoped the agency would use that authority to avoid inconsistent restrictions, but Clinton-era chemicals head Jim Aidala told Inside TSCA that PFAS shows that element of the law “works on paper but rarely works in practice.”
He said that flaw comes both from the structure of the law, which only preempts state rules on chemicals that EPA targets for resource-intensive risk evaluations, and from a natural desire by state leaders to take aggressive action on hazards to their constituents.
“State preemption works on paper for the purpose of facilitating and maintaining interstate commerce, but then [officials in] individual states, when there’s a problem in their state, say ‘Hey, thank you, that’s very interesting, but my state needs action . . . My people in the community demand action,’ and they’re right,” said Aidala, now as a government affairs consultant at the chemicals-focused law firm Bergeson & Campbell.
He described Whitmer’s directive as just the latest example of “tension” between states and the federal government on PFAS regulation – which even strong TSCA preemption might not remedy.
“That’s an inherent tension,” Aidala says. “Preemption is a great goal, but it’s almost functionally never easy to practice. Because even if there was strong, clear preemption language, we would still have a governor able to go out and say, ‘The federal law won’t allow me to take action, but I think . . . blank.’ And that will have consequences in the community.”
And he noted the nature of PFAS as a vast class of chemicals – with potentially thousands of members, by some definitions – makes TSCA preemption an especially poor fit for the situation.
But for PFAS, he notes, it would be all but impossible for EPA to address the “broad bucket” of chemicals in the class through the TSCA evaluation process – despite calls from environmentalists for “class-based” rules. That approach has gained traction in European countries that use a hazard-based regulatory system instead of the risk-based principles required by TSCA, which factors in likelihood of exposure.
Several of the recent state laws have also used a class-based approach, often drawing industry opposition over that model based on arguments that regulators should be considering risks from individual PFAS to avoid limiting use of chemicals with little chance of causing public harm.
Aidala said the chemical-by-chemical approach would be all but impossible for EPA to implement, because “No one’s going to volunteer to assess” thousands of PFAS.
“No one’s going to say ‘EPA, I want you to do 2,000 risk assessments. By the way, I don’t have a lot of data on a whole bunch of them, nor do you.’ And by the way, the law says [the manufacturer] is going to help pay for those – which company out there is going to pay for 2,000 assessments?” he asked.
Aidala said he expects that scenario will “remain a problem until EPA and other regulatory bodies figure out which compounds in the family matter most,” but added that “the lack of data on many members of the category will be a problem as the public (and public officials) demand more immediate attention to the problem”
“As EPA and states try to define what matters most it could also trip over blanket statements that apply to the whole category and then present an unexpected problem sorting out reporting requirements or fine-tuning purchase directives overwhelming the system,” he said.
“That might be an issue, for example, where EPA has said it wants all products – including articles – to be reported – and that might include things (rain jackets, dental floss) that could take time and resources away from things that probably matter more.”
See – https://insideepa.com/tsca-news/former-official-says-pfas-patchwork-shows-failures-tsca-preemption (subscription required)