Washington Bill to Save Orcas Makes Waves With Chemical Industry

March 15, 2019, 9:00 AM

A bill that would give Washington state regulators the power to ban toxic substances in an effort to protect critically endangered killer whales is getting pushback from the chemicals industry.

The bill would regulate the presence of a chemical in a consumer product and could lead to outright bans in order to protect either humans or killer whales, also known as orcas.

The 75 orcas that remain in the waters north of Puget Sound, down from a high of 98 in 1995, live in family pods that spend much of the year wending their way through the relatively narrow passages of the San Juan Archipelago—a maritime gateway to ports, fossil fuel terminals, and refineries on both sides of the Canadian border.

Washington Gov. Jay Inslee (D) convened a Southern Resident Orca Task Force last year and bills to improve salmon habitat, protect the orca from vessels, and reduce the chances of an oil spill passed their legislative chambers of origin by large margins and appear on a path to passage.

Not so the toxics bill, SSB 5135, which would give the state’s Department of Ecology the specific authority to ban toxics without first getting legislative approval. It barely passed the Senate on a party-line vote and is now in the House.

“These same chemicals that are showing up in our homes, our breast milk, our drinking water are the same chemicals that are showing up in orcas and throughout the food web and in sediments in Puget Sound,” according to Ivy Sager-Rosenthal, a spokeswoman for Toxic-Free Future. She said the source of the contamination is the same: consumer products, including televisions, carpeting, and food packaging.

‘Unchecked Authority’

Only California has such an orca protection law and the chemical industry wants to keep it that way, according to spokespeople for the American Chemistry Council and its nemesis Toxic-Free Future, which wrote the bill.

“This legislation gives the Department of Ecology unchecked authority to regulate products sold in the state and the creation of another list of chemicals, without allowing stakeholder engagement,” American Chemistry Council spokesman Andrew Fasoli wrote in a March 12 email.

The chemicals industry mounted a major lobbying effort to stop the bill in the Senate, Sen. Christine Rolfes (D), the bill’s prime sponsor, told Bloomberg Environment in a March 13 interview.

“The vote was as close as it gets, 25-24,” said Rolfes, chairwoman of the Ways and Means Committee. “Only Democrats voted for it.”

The other orca recovery bills drafted largely by the governor’s office sailed through, many hashed out in the consensus atmosphere that infused Washington state in 2018 after nightly television news aired the tragic spectacle of a mother orca hauling her dead calf around for days.

Protection or Presumption?

Rolfes and Toxic-Free Future see the chemicals measure as protecting both people and orca.

“Any fish or mammal—including us—that accumulates biotoxins will be cleaner,” Rolfes said. “They’ll have less cancer; they’ll have less hormone disruption. And with humans, if we aren’t exposing our infants to toxic baby bottles or toxic clothing or toxic carpeting, you could start seeing results a lot faster.”

Sylvain De Guise, a University of Connecticut veterinarian, toxicologist, and immunologist whose work focuses on marine mammals, called the bill a “no-regrets statute. There’s nothing bad that can happen by regulating what we discharge into the environment for killer whales or for people.”

The Washington state bill allows regulators to put “a restriction or prohibition on a priority chemical” used in consumer products, including perfluoroalkyl and polyfluoroalkyl substances, or PFAS chemicals; phthalates; organohalogens and certain other flame retardants; phenolic compounds such as bisphenols; and polychlorinated biphenyls, or PCBs.

Longer-Term Benefits

“We know that several of those are endocrine disruptors,” De Guise said. He suspects it will take decades rather than years for the chemicals to fade out of killer whale tissue. “The benefits are going to be in the longer term.”

But the American Chemistry Council has several concerns with the bill in its present form.

“The bill makes a presumption that the presence of any identified high priority chemical in a consumer product means that the product is potentially harmful,” Fasoli said in his email.

The bill is scheduled for public hearing March 21 in the House Committee on Environment and Energy, where Democrats hold a wider majority than they do in the Senate.

Rolfes gives it a “good” chance of passage. Inslee would almost certainly sign it into law.

To contact the reporter on this story: Paul Shukovsky in Seattle at pshukovsky@bloomberglaw.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Jean Fogarty at jfogarty@bloombergenvironment.com; Steven Gibb at sgibb@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

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