April 23, 2018
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Maine environmental agency must restart process to toughen rules against harmful chemicals in children’s products

By Christopher Cousins, BDN Staff

AUGUSTA, Maine — The Department of Environmental Protection canceled a hearing on proposed rules for dangerous chemicals used in products for children on Tuesday after the attorney general’s office advised that the rules were not proposed according to law.

At issue is the department’s proposed elevation of four harmful chemicals to the highest level of oversight, known as priority status, under changes made in 2011 to the Kids Safe Product Act.

“It means that manufacturers that intentionally add these chemicals to products will have to report that use to the department,” said DEP spokeswoman Jessamine Logan. “This is the only way for the department to know they’re being used in children’s products. … These are chemicals of high concern, and we want to elevate them to the priority list.”

According to Logan, the four chemicals — cadmium, arsenic, mercury and formaldehyde — were not explicitly identified in the department’s regulatory agenda, which was to be the subject of Tuesday’s canceled public hearing.

There are currently only two chemicals on the department’s priority list, bisphenol A and nonylphenol/nonylphenol ethoxylates. There are dozens of harmful substances on a lower-tier list maintained by the department, “ Chemicals of High Concern.” Chemicals are put on this list when there is “strong, credible scientific evidence that the chemical is a reproductive or developmental toxicant, endocrine disruptor or human carcinogen,” as long as the chemical has also been found in humans, household dust, air, drinking water or is present in consumer products used in homes, according to the department’s website.

While Logan said the exclusion of the chemicals in the rule was an “oversight,” environmental advocates said it was an attempt by Gov. Paul LePage’s administration to avoid elevating the chemicals to the priority list. They also called for stronger government action than what the LePage administration has proposed.

“The administration tried to do an end run on the Kid Safe Products Act by proposing rules that would take no new action on four dangerous chemicals,” said Dr. Steven Feder, president of the Maine Chapter of the American Academy of Pediatrics, in a written statement. “There are harmful chemicals in everyday use that require more careful scrutiny and regulation. That is where our energy should be focused, not on empty rules dressed up to look good. We need real action to help parents protect their kids from cancer, learning disabilities and reproductive problems.”

Under the Maine Administrative Procedures Act, the DEP is required to give the Legislature a one-year advance notice of any toxic chemicals it intends to regulate under the Kid Safe Products Act., according to the Alliance for a Clean and Healthy Maine. The four chemicals in question were not included in the department’s annual regulatory agenda, which was given to the secretary of state in October. Each state department is required to publish a regulatory agenda within 100 days of the adjournment of a legislative session. The first session of the 126th Legislature adjourned July 10.

According to a letter dated Tuesday from Attorney General Janet Mills, a Democrat, to Assistant House Majority Leader Jeff McCabe, D-Skowhegan, who had requested a legal opinion from Mills, the DEP did not follow the statutory requirements.

“Since the chemicals … were not disclosed to the Legislature before DEP initiated this rulemaking, these rules cannot proceed to adoptions as originally proposed,” wrote Mills.

LePage has resisted stricter regulation of BPA, a chemical used in some food packaging that many argue causes adverse health effects. In July, hours after a rally at the State House urging him against it, LePage vetoed LD 1181, which had passed through the Legislature with unanimous approval. The bill would have required more stringent labeling requirements for products or packaging made with potentially harmful chemicals, including BPA, by manufacturers with annual sales in excess of $1 billion.

LePage wrote in his veto letter that the bill went too far and represented an unfunded mandate for the DEP, and he was hoping the U.S. Congress could accomplish the same goals through its deliberations on the Toxic Substances Control Act.

“These efforts will require significant resources and such resources are not forthcoming,” LePage said. “The agency can’t do something with nothing. … I am willing to engage further in such dialogue but the bill as drafted goes too far and constitutes an unfunded mandate.”

Logan said Wednesday that the rule was revised and sent to the secretary of state’s office on Tuesday with the hope that it will be posted for comment on the department’s website and in newspapers next week. The public hearing has been rescheduled for Jan. 14.

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