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Erie County’s microbead ban was far ahead of its time – maybe too far

The Erie County Legislature was ahead of the game last summer when it passed one of the most stringent laws in the country banning microbeads, which are seen as polluting rivers and lakes. Perhaps a little too far ahead.

The Legislature on Thursday is expected to void its microbead ban law, which would have prohibited stores from selling face- and body-care products containing the tiny plastic particles by the end of this month. A federal law is pre-empting the local measure and it gives the body beautification industry until mid-2017 to come up with microbead-free products.

That means the current formulas for many residents’ favorite lotions, soaps, face washes and skin-smoothing body products may not be disappearing from Erie County store shelves as soon as originally expected.

“I’m proud of the role that the county played in initiating microbead bans locally and across the country,” said Legislator Patrick Burke, D-Buffalo, who sponsored the local legislation that was adopted in July. “I think it had a direct cause of the federal ban being enacted, but I still think ours is the most comprehensive ban in the country.”

Legislators contend that Erie County’s law was instrumental in leading President Obama to sign the Microbead-Free Waters Act, though Erie County was not alone in approving local and state laws to ban the plastic particles in beauty products. The Chautauqua County Legislature passed a similar law in September, and Illinois has the only statewide microbead ban, which would have taken effect in 2018.

Environmentalists raised concerns after a 2013 study showed how the particles were making it through sewage filtration systems and winding up in the Great Lakes, the largest body of fresh water on earth. The New York State attorney general also released a study last year showing that in samples of treated wastewater, including those taken from six sewage plants in Western New York, microbeads passed straight through sewage filters and into area waterways. Fish also mistake microbeads for food.

Legislature Chairman John Mills, R-Orchard Park, who is sponsoring the bill to void the county law, agreed that county action helped prompt action at higher levels of government.

“We had to nudge our federal and state people to get off their butts and do something,” he said. “And they did.”

But since the federal law was signed, Mills said he’s heard from industry lobbyists who question whether they are supposed to work under the rules of the federal law or the rules of Erie County law, which would go into effect much sooner.

While the beauty industry has been moving toward microbead-free products, they have pushed for a longer timeline to make the transition.

Mills said he’s not particularly sympathetic to what he considers “delay tactics” by the beauty industry, but said the local law is written in a way that makes it clear the federal law takes precedence.

A section of the county microbead ban law states the county law is “null and void” if the state or federal government passes a law with “substantially similar provisions.” It’s up to the Legislature to determine if that is the case.

Mills said he spoke with Burke, the legislation sponsor, who told him he had no problem with the new resolution to let the federal law take precedence.

But on Tuesday, Burke said he believes the county law is more stringent than the federal law and is waiting for an official opinion from the County Attorney’s Office about whether the federal law could be considered “substantially similar” to Erie County’s. Unless that opinion supports the position of Mills and other members of the Republican coalition, he said, he plans to vote against voiding the county law.

“I’m not going to go along with killing one of the best laws the county has come up with for a while,” he said.

email: stan@buffnews.com