Wednesday, January 16, 2008

Getting the Lead Out, Riiiight

I apologize up front for the length of this post, but proposed legislation like this deserves to get torn to pieces line by line.

Two Massachusetts legislators have proposed feel-good legislation to eventually outlaw a variety of "toxic substances". One of those substances is lead, as in the lead used in bullets, or wheel weights, or batteries, or ...

This is a very bad bill, but some people are claiming that the NRA and others are chicken-littles based on responses from 2 of the sponsors of this bill. These responses are posted here:

Both responses claim that this proposed bill is no threat to hunters and shooters because it will not affect lead ammunition or shooting ranges and that it has "no teeth". Both responses are factually incorrect on their substantive points to the point of deliberate mis-information.

So, let's look at the actual bill to debunk these replies and illuminate the dangers. I'll use the House version, but a quick look through the Senate version showed no major differences:
First, there is the false assertion that it will not affect ammunition or ranges where said ammunition is present. Here's the definition of the initial "priority toxic substances":
60 “Priority toxic substance” means any of the following sub
61 stances:
62 Lead
63 Formaldehyde
64 Trichloroethylene
65 Perchloroethylene
66 Dioxins and Furans
67 Hexavalent chromium
68 Organophosphate pesticides
69 Polybrominated Diphenyl Ethers
70 di-(2-ethylhexyl)phthalate (DEHP)
71 2,4, Dichlorophenoxyacetic acid (2,4, D)

This is the classic list of stuff that can be dangerous to people if they misuse it so the state must protect us from them. Note that there is no exemption for any forms of lead. Lead is Lead.

Here is the definition of "used". Note that the presence of said chemicals in services is included:
109 “Usage” means the presence of a priority toxic substance in
110 manufacturing, products or services delivered or conducted within
111 the Commonwealth.
Ranges provide a service. Lead is present as part of the conduct of that service. Maybe one could argue that ranges are exempt under the end user exemption noted below, but I would not want to bet on it.

Interestingly, while people can petition to have chemicals added to the priority toxic substance list (lines 655 to 664) it appears that people cannot petition to have them removed from the list. The mitigation/substitution plan can be challenged, but there is nothing that indicates the inclusion of a chemical on the list that results in said plan can be challenged:
676 (C) Petition for Appeal. No later than 60 days following the
677 publication of a final Chemical Action Plan by the EOEA, any ten
678 residents of the Commonwealth may file a petition of appeal of
679 any provisions of the plan with the Secretary of Environmental
680 Affairs. Such a petition may be filed if the petitioners assert that
681 the plan mischaracterizes uses of the priority toxic substance; fails
682 to include feasible alternatives, or mischaracterizes alternatives;
683 fails to result in substitution of the safest available alternatives as
684 expeditously as possible; fails to adequately address job loss or
685 impacts on existing jobs; or otherwise fails to meet the criteria of
686 this act.
Then there is the false assertion that the bill has no teeth. The proposed legislation starts with forced registration to identify the targets:
229 Section 27. Registry of Uses of Priority Toxic Substances.
230 (A) Notices. No later than 120 days following the effective
231 date of this section, any person or legal entity that manufactures
232 or distributes a product in the Commonwealth which the manufac
233 turer or distributor knows or has reason to suspect to contain a pri
234 ority toxic substance shall file a notice with the department identi
235 fying the product, the approximate number of units distributed in
236 the Commonwealth, an estimate of the amount or concentration of
237 the priority toxic substance contained in each unit, if known, pur
238 pose for including the priority toxic substance, the name and
239 address of the manufacturer, and the name, address, and phone
240 number of a contact person.
Followed by enforcement (note the use of the words "require", "regulations" and "enforcement"):
288 ...The goal of the Chemical Action
289 Plan shall be to coordinate state agency activities and to require
290 users of priority toxic substances to act as expeditiously as pos
291 sible to ensure substitution of the priority toxic substance with a
292 safer alternative, while acting to minimize job loss and mitigate
293 any other potential unintended negative impacts.
430 (A) In conformance with the Chemical Action Plan, the depart
431 ment shall promulgate regulations to establish substitution dead
432 lines and substitution planning requirements for business or
433 institutional uses for each priority toxic substance. The regula
434 tions shall specify enforcement mechanisms.
494 Section 32. Implementation — Distributors and Out of State
495 Manufacturers of Products Containing Priority Toxic Substances.
496 The department shall promulgate regulations for distributors
497 and out of state manufacturers to implement the Chemical Action
498 Plan for each priority toxic substance,
and the "all powers" catch-all in case something was forgotten:
562 (C) The department shall have all of the powers and authorities
563 necessary to prohibit or limit the use, sale or distribution of a
564 product containing a priority toxic substance in the Common
565 wealth.
all backed up with penalties:
666 (A) Penalties for Noncompliance. Except as otherwise provided
667 in paragraph B of this section, violations of sections 24 to 39 of
668 this chapter by any person or legal entity, shall subject the violator
669 to penalties of up to $25,000 per day of violation. In addition, the
670 department shall have the authority to exclude products from the
671 state when a distributor or manufacturer has failed to comply with
672 the provisions of this Act.
One might note that the following section (lines 673-675) exempts end users from penalties, but if there is no manufacture or distribution of said items then the effect of people not having access to said items is still the same.

All of this of course will be funded by new fees: Guess who ultimately pays those:
1 SECTION 5. Fee on toxic substances.
2 The department of environmental protection shall revise its
3 existing fee structure under the Toxics Use Reduction Act to
4 encompass, in addition to current filers, the wholesale sellers or
5 distributors of products or services to retail establishments in the
6 Commonwealth where such products or services utilize or contain
7 priority toxic substances, regardless of whether such wholesale
8 sellers or distributors are located within or outside of the Com
9 monwealth.
In the end this is more than just an anti-hunting, anti-gun bill. It is an omni-bus feel-good bill would result in significant governmental growth with new boards, fees, rules and regulations, and the intrusion into and constraint of free individual and market activities in the interest of socialist nanny-stateism.

Bad bill, very bad bill.

Update: Apparently the House version of this bill, which I used for the above analysis, has been pulled. The latest Senate version has been revised apparently to attempt to quiet some of the outcry. Specifically the initial list of priority toxic substances has been removed. Unfortunately, all the other problematic sections and their attendant issues remain, most of them word for word. This is STILL a very bad bill.

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