Sens. Frank Lautenberg (D-NJ) and David Vitter (R-LA) announced a bi-partisan bill to modernize the Toxic Substances Control Act (TSCA). The “Chemical Safety Improvement Act of 2013” would see all chemicals in commerce screened for safety in order to protect public health and the environment. It would also allow industry to continue on a path of innovation, and create and grow jobs for manufacturers. Sen. Vitter said the bill “strikes the right balance between strengthening consumer confidence in the safety of chemicals while also promoting innovation and the growth of an important sector of our economy.”

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The European Union (EU) has adopted an amendment to Annex XIV of the Registration, Evaluation, Authorization and Restriction of Chemical (REACH) substances regulation. Annex XIV, represents the Authorization List of the REACH program, and the amendment was published on April 18, 2013. The amendment will add trichloroethylene, chromium trioxide, acids generated from chromium trioxide and their oligomers, sodium dichromate, potassium dichromate, ammonium dichromate, potassium chromate and sodium chromate to the authorization list. The elevation of these chemicals under REACH could translate to an elevated interest in these chemicals under California's Safer Consumer Product regulations.

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Beginning on July 20, 2013, a set of new EN 71-3 chemical requirements from the EU Toy Safety Directive will go into effect. The new requirements require toys to be designed and manufactured in a manner that will prevent exposure to harmful chemical elements that can impact human health. The requirements include restrictions on toxic elements, certain fragrances and the use of carcinogenic, mutagenic and reprotoxic (CMR) chemicals. Manufacturers will now be required to provide a Technical File, which contains documentation that demonstrates the toy complies with design, manufacture, chemical and operational requirements. The file must be updated when any changes to the toy, legislation or standards.

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For the last few years Senator Lautenberg (D-NJ) has been leading the charge to reform the Toxic Substances Control Act (TSCA) and he has introduced a bill once again that would do just that. The “Safe Chemicals Act of 2013” would modernize TSCA and give the Environmental Protection Agency (EPA) the necessary tools to assess and manage chemicals. The legislation is identical to that which passed the Senate Environmental and Public Works (EPW) Committee last year. Highlights of the bill include allowing EPA to secure health and safety information for new and existing chemicals, while avoiding duplicative testing, require risk management of chemicals that cannot be proven safe, establish a public database to detail the health and safety information submitted by chemical manufacturers, and to promote innovation and development of safe chemical alternatives. The legislation already has 28 cosponsors.

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The California Department of Toxic Substances Control (DTSC) has released a revised text of the proposed Safer Consumer Products regulations. The revised regulations impact the process for identifying and prioritizing consumer products and their chemicals of concern, how to evaluate alternatives, and imposing regulatory responses. DTSC also revised the regulations last month, which we blogged about here. With the new revisions comes a 15 day comment period which is now open, and all comments must be received by April 25, 2013.

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The Environmental Protection Agency (EPA) is adding new stakeholder input procedures to its pesticide registration review process and consultations under the Endangered Species Act (ESA), including a broader role for the U.S. Department of Agriculture (USDA). EPA released a paper discussing these changes entitled, “Enhancing Stakeholder Input in the Pesticide Registration Review and ESA Consultation Processes and Development of Economically and Technologically Feasible Reasonable and Prudent Alternatives.” The paper was put together by the EPA, the USDA, the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS).

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The U.S. Environmental Protection Agency (EPA) announced it will begin assessments on 23 chemicals, with a focus on flame retardant chemicals. Of the 23 chemicals, 20 are flame retardant chemicals and are used in products such as furniture, textiles and electronic equipment. These assessments are part of the Toxic Substances Control Act (TSCA) Work Plan. Four of the flame retardants will receive a full risk assessment, three of which are on the TSCA Work Plan and one that was the subject of an Action Plan developed under TSCA. The chemicals are: 2-Ethylhexyl ester 2,3,4,5- tetrabromobenzoate (TBB); 1,2- Ethylhexyl 3,4,5,6-tetrabromo-benzenedicarboxylate or (2-ethylhexyl)-3,4,5,6 tetrabromophthalate (TBPH); Tris(2-chloroethyl) phosphate (TCEP); and Hexabromocyclododecane (HBCD). For more information on the TSCA Work Plan and risk assessments visit the EPA website.

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Today, the Department of Toxic Substances Control issued a 15-day notice to submit comments on: (1) nine new external scientific peer review reports; and (2) the California Environmental Policy Council resolution on the need for a multimedia life cycle evaluation adopted February 28, 2013. The public notice and associated documents can be accessed here. The public comment period will commence on March 13, 2013 and close on March 28, 2013.

Circulating these documents for review and comment appears to be DTSC’s final effort at bolstering the administrative record for the Safer Consumer Product Regulations rulemaking, and signals imminent adoption of the draft circulated for 30-day public comment on January 29, 2013. See our January 29, 2013 blog here. Notwithstanding, the release of these documents continues a disturbing trend toward procedural piecemealing (See our December 21, 2012 blog on this issue here, which makes it very difficult for anyone in the supply chain to understand what is truly at issue, or their rights with respect to any future challenge. Stay tuned… 

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In 2008, the state of Washington adopted the Children’s Safe Product Act (CSPA). As part of that act, the Washington Department of Ecology (DOE) was tasked with developing draft regulations to implement the act. Under the regulations, companies “whose annual aggregate gross sales, both within and outside of Washington, are more than one billion dollars, based on the manufacturer's most recent tax year filing are required to report,” if their product includes a chemical on the state chemical of concern list. The first round of reporting data concluded in August of 2012. The second round of reporting data has now been concluded and it is now available through the Washington DOE site.

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The Interstate Chemicals Clearing House (IC2) has released a draft entitled, “Guidance for Alternatives Assessment and Risk Reduction.” IC2 consists of member states: California, Connecticut, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon and Washington. The draft defines an alternatives assessment (AA) as “a process for identifying and comparing potential chemical and nonchemical
alternatives that can be used as substitutes to replace chemicals or technologies of high concern. The purpose of the alternative assessment guidance on which the states are working is to address these issues from a product perspective although other uses are possible.” The document goes on to say that the object of an AA is to replace chemicals of concern (COCs) in products or processes with inherently safer alternatives in order to protect human health and the environment. The draft is open for public comment until Friday, April 19, 2013. For more information visit the IC2 website.

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Last Friday, companies filed a lawsuit to prevent California EPA from putting bisphenol A (BPA) on the state’s Proposition 65 list. The Prop 65 list is for chemicals that are potentially dangerous to human health. The American Chemistry Council (ACC) opposes an Office of Environmental Health Hazard Assessment (OEHHA) proposal that would include BPA on the list as a reproductive toxin. ACC believes OEHHA is trying to find a way to bypass a previous finding by scientific experts that reviewed the same evidence and concluded BPA should not be on the Prop 65 list. How could the agency ignore the advice of its own scientific panel and choose to do something different? And if the agency is going to do such a thing, how can companies trust decisions they have made previously or will make in the future? That is exactly what ACC wants the answers to and they are hopeful that this suit will answer them and thwart OEHHA’s attempt to list BPA on the Prop 65 list.

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What do you need to be prepared for in the first 60 days?

2013 will mark the end of one struggle and the beginning of another in industry’s attempt to understand and prepare for the obligations and expectations for the design and manufacture of products sold in California.
Leading up to the formation of California’s Green Chemistry Initiative in early 2007 was an increasing volume of legislative proposals to ban chemicals and ingredients used in consumer products. The Initiative was supported by industry interested in moving the debate about the safety of chemicals to a regulatory agency staffed with scientists and resulting in decisions grounded on peer-review studies and sound science, not emotional arguments made in three minutes of testimony at a legislative hearing. Now, in 2013, industry is faced with compliance with 74 pages of regulations that fall far short of what was supported in 2008. It’s a giant paperwork morass with not a scintilla of science in sight.
To read the remainder of the article please click here.

Senator Frank Lautenberg (D-NJ) announced last week that he will be retiring at the end of his term next year. Sen. Lautenberg has been a driving force in the recent years in pushing for TSCA reform legislation and will continue the push this year. He plans to reintroduce his bill, the Safe Chemicals Act, which was approved by committee last year in the near future. Recent reports indicate that due to Sen. Vitter’s (R-LA) plan to introduce competing TSCA reform legislation targeted towards industry, that Sen. Lautenberg may be open to revising his bill before re-introducing it to answer some of the concerns that industry previously had with his bill. If he does so, while there are no guarantees, it could lead to some bi-partisan support for the bill. 

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The Department of Toxic Substances Control (DTSC) has issued a 30-day notice to submit comments on proposed revisions to its Safer Consumer Products Regulation. The changes establish the process for identifying and prioritizing consumer products and their chemicals of concern, evaluating alternatives and imposing regulatory responses. As mentioned in our advisory, the revised text will be open for public comment until February 28, 2013. A summary of the significant changes to the regulations can be found here. At first glance, some positive changes in this latest draft include elimination of the requirement to employ certified assessors to perform the regulatory work, introduction of the distinction between contaminants and intentionally-added chemicals found in consumer products, and establishment of a PQL (practical quantitation limit) as the analytical chemistry threshold for determining whether compliance obligations are triggered.

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The California Department of Toxic Substances Control (DTSC) has published public comments submitted regarding the External Scientific Peer Review (ESPR) on the Safer Consumer Product Regulations. In total 14 comments were submitted. Those that commented are the American Chemistry Council, American Cleaning Institute, American Forest & Paper Association, Amway, CA Council Environmental & Economic Balance, CA Industrial Hygiene Council, CHANGE, Consumer Specialty Products Association, the European Union, Grocery Manufacturers Association, Rubber Manufacturers Association, SNR Denton, Unifrax and the Western States Petroleum Association.

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Illustrating a rare example of criminal enforcement under electronic waste (e-waste) regulations, the U.S. Attorney in the federal district of Colorado has successfully prosecuted a recycling business called Executive Recycling for allegedly exporting e-waste containing lead to foreign countries, including China. On December 21, 2012, a jury found Executive Recycling, its CEO, and Vice President of Operations guilty on several counts, including exporting glass video display components known as Cathode Ray Tubes (CRTs), often found in TV monitors and computers, in violation of the Resource Conservation and Recovery Act (RCRA) and Colorado’s authorized hazardous waste program. Defendants are scheduled to be sentenced in April, but plan to appeal the jury verdict.

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EPA signed a Federal Register Notice today, which announced that the drafts for the first five Work Plan Chemical risk assessment are now available. The five assessments that are available are for antimony trioxide (ATO), HHCB, methylene chloride (DCM), n-methylpyrrolidone (NMP), and trichloroethylene (TCE).

ATO is a compound used primarily as a synergist for flame retardants and as a catalyst for polyethylene terephthalate (PET) plastics. The risk assessment examined the potential ecological hazards that may come from ATO’s use in flame retardants and found the risks to be negligible. ATO’s human health risks from its use in flame retardants, has already been evaluated and presents minimal concerns. ATO’s use in plastics was not evaluated in the draft risk assessment.

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In its quest to regulate the global supply chain for over 3,000 ingredients in products sold in California, the California Environmental Protection Agency’s Department of Toxic Substances Control is making it very difficult for anyone in that supply chain to understand how they may be affected by the proposed rules and precluding effective public comment. In its latest piecemealing activity, the California government has released a revised initial statement of reasons, or ISOR, for public comment on December 20, 2012 with comments due by January 22, 2013. See notice here. Only three weeks ago on November 30, 2012, it released a set of 10 scientific peer review documents and requested comment by January 4, 2013. See notice here. The revised draft regulations are expected to be released on January 2, 2013 and the public is likely to be required to provide comment in cascading form in another three weeks. This pattern of piecemealing parts of this ambitious regulatory proposal has been ongoing for years, and as we have previously blogged, has a questionable legal foundation (see here). 

This procedural piecemealing effectively denies the public due process of law, and is compounded by the fact the draft regulations released on July 27th (see here) do little more than provide an outline for procedure that the agency intends to follow, while disclosing almost none of the substance of what product manufacturers, importers, and retailers, will have to face – further diluting the ability of impacted parties to meaningfully participate in the process.

Merry Christmas world. California’s gift is coal in our stockings.

Written by Maureen Gorsen, Partner, Alston & Bird LLP | Follow us on Twitter

The U.S. Environmental Protection Agency (EPA) and the U.S. Consumer Product Safety Commission (CPSC) have agreed to a collaborative effort for worldwide research to determine any potential impacts nanomaterials have on health and the environment. Nanomaterials are present in a number of household products. Dr. Tina Bahadori, national program director for EPA’s Chemical Safety for Sustainability Research said in a statement, “Nanotechnology and nanomaterials used in the development of these products improve our everyday lives, but it is important that we understand how humans are exposed to nanomaterials and to assess the risks they may pose to people’s health and the environment.”

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Sen. David Vitter (R-LA) is working on a Toxic Substances Control Act (TSCA) reform bill, which he hopes to introduce in the early part of 2013. The senator would need to have bi-partisan support for the bill to move forward, as all indications point to Sen. Lautenberg (D-NJ)plans to reintroduce his TSCA reform legislation next year, that was approved by the Senate Environment and Public Works Committee earlier this year. Vitter will likely need Lautenberg’s support of his bill if he wants it to move forward, because without his support it is unlikely other democrats would support Vitter’s bill. Sen. Vitter’s bill is likely to be heavily driven by industry’s input, which will be a stark contrast to Sen. Lautenberg’s bill. It will be up to Vitter and his staff to find that fine line to attract bi-partisan support needed for the bill to move forward next year.

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