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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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
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The California Court of Appeals of the Third Appellate District held on Wednesday chemicals that fall under Proposition 65’s coverage must be known to cause cancer or reproductive toxicity. Proposition 65 (“Prop 65”) prohibits businesses form discharging chemicals known to the state to cause cancer or reproductive toxicity into drinking water and requires businesses to warn the public if they knowingly and intentionally expose individuals to such chemicals.
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The California Department of Toxic Substances Control(DTSC) has announced a 30 day extension for the comment period on their proposed Safer Consumer Product regulations. The proposed regulations were released in late July and we blogged about them here. The new deadline for submitting comments is 5 p.m. on October 11, 2012. The public hearing on September 10, 2012 will take place as scheduled.
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The Senate Environment and Public Works(EPW) Committee is set to hold a markup tomorrow on Sen. Lautenberg’s “Safe Chemicals Act” legislation. S. 847, would reform the 1976 Toxic Substances Control Act(TSCA), which has yet to be reformed since it became law. The bill gives EPA broader authority to require any data so that it can more easily determine the safety of chemicals. It would make the EPA block chemicals that are deemed high risk to the public.
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The state of Washington’s Department of Ecology has proposed an amendment to its Children’s Safe Products Reporting Rule. The amendment would add tris(1,3-dichloro-2-propyl)phosphate(TDCPP)(CAS #13674-87-8) to its chemical of high concern to children(CHCC) list. TRIS is a flame retardant, and is on other state’s chemicals of concern lists. The amended rulemaking was initiated in response to a petition filed to add TDCPP to the CHCC list. The Department of Ecology’s Director decided to proceed with this rule making based on two pieces of criteria:
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On Thursday, the Supreme Court issued its decision in the case Southern Union Co. v. United States, 567 U.S. __ (2012), holding that the Sixth Amendment right to a jury trial requires juries — not judges — to decide the facts warranting a fine that exceeds a statutory maximum of any crime for which a defendant is convicted. This case has significant implications for corporations charged with white collar crimes, as many such crimes include statutory provisions similar to the one at issue in Southern Union that allowed for fines based “per day of violation.” The holding will also implicate fines imposed under the Alternative Fines Act (AFA), which allows fines above the statutory maximum in amounts equal to twice the economic gain or loss of the offense of conviction. 18 U.S.C. § 3571(d). Under either of these provisions, a corporation can be subject to millions — if not billions — of dollars in fines, even though the statute under which it was convicted may be capped at $1 million or less.
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California Governor Jerry Brown has ordered state agencies to review and revise flammability standards for “upholstered furniture sold in the state,” according to the governor’s website. Brown told the Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation(BEARHFTI) that they must begin to review the 40 year old standards and revise them in order to reduce toxic flame retardants. He said, “Toxic flame retardants are found in everything from high chairs to couches and a growing body of evidence suggests that these chemicals harm human health and the environment. We must find better ways to meet fire safety standards by reducing and eliminating—wherever possible—dangerous chemicals.” Once the process begins workshops will be held and the revisions will be open to a public comment period.
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The U.S. Environmental Protection Agency (EPA) announced today that it is extending the Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) rule reporting deadline until August 13, 2012. The original date was scheduled to be June 30, 2012. This is a one-time-only extension for the reporting rule, which “requires manufacturers and importers of certain chemical substances included on the TSCA Chemical Substance Inventory to report current data on the manufacturing, processing and use of the chemical substances.”
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The EPA announced today a set of proposed Significant New Use Rules(SNUR) under the Toxic Substances Control Act(TSCA) for five groups of chemicals: polybrominated diphenylethers(PBDEs), benzidine dyes, hexabromocyclododecane(HBCD), a short chain chlorinated paraffin, and phthalate di-n-pentyl phthalate(DNPP). The proposed rules “would require that anyone who intends to manufacture, import, or process any of the chemicals for an activity that is designated as a significant new use to submit a notification to EPA at least 90 days before beginning the activity.” The notification process would allow the EPA to evaluate and review the new use of the chemical, and it provides the EPA time to take action if they deem necessary. As part of the SNUR for PBDE’s, the EPA proposes additional testing for the PBDE’s as they relate to health and environmental effects.
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Despite the absence of specific legislative authorization delegating to them ruling making authority concerning California’s Green Chemistry program, the California Office of Environmental Health Hazard Assessment(OEHHA) announced today the adoption of its Green Chemistry-Hazard Traits Rulemaking. The adopted rule, which we have previously blogged about here and later here, is stated to be a response to the California Health and Safety Code section 25251, which requires the California Department of Toxic Substances Control(DTSC) to “establish the Toxics Information Clearinghouse, which shall provide a decentralized, Web-based system for the collection, maintenance, and distribution of specific chemical hazard trait and environmental and toxicological end-point data.” The adoption of the regulation becomes effective on January 19, 2012.
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Today, the Senate Environment and Public Works Committee held a hearing entitled, “Legislative Hearing on the Safe Chemicals Act.” The hearing examined Sen. Lautenberg’s(D-NJ) legislation S. 847, the Safe Chemicals Act of 2011. The legislation would amend the Toxic Substances Control Act(TSCA) of 1976, which we have discussed here.
The committee received testimony from Ted Sturdevant, Director of the Department of Ecology for the State of Washington; Charlotte Brody, Director of Chemicals, Public Health and Green Chemistry for the BlueGreen Alliance; Cal Dooley, President and CEO of the American Chemistry Council; Robert Matthews, Counsel at McKenna Long & Aldridge; and Dr. Richard Denison, Senior Scientist for the Environmental Defense Fund. Testimony for each of them can be found here.
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Many states are beginning to take notice and ban the toxic chemical bisphenol A(BPA) from children’s products, including baby bottles, sippy cups and other food containers. On October 1st in Connecticut one of these laws began to be implemented. Baby products, food cans, and reusable food and beverage containers that are sold, produced or distributed in Connecticut can no longer contain BPA.
While the law begins to take effect in Connecticut, California Governor Jerry Brown signed a bill, AB 1319, that bans BPA from baby bottles and sippy cups. California becomes the ninth state to enact some form of BPA ban. The ban will begin on July 1, 2013, and requires manufactures to use the least toxic alternative in those products. The bill which was sponsored by Sen. Fran Pavley was three years in the making. The senator worked very hard on moving the bill forward as the original bill was defeated just one year ago. As Connecticut begins its ban and California takes its first steps in the process, it will be interesting to see if more states enact similar bans or if a bill comes at the Federal level.
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A recently published FDA report in the Journal of Agriculture and Food Chemistry has a number of Congressman calling for action. The report (need to be logged in to access, membership is free) sites that levels of bisphenol A(BPA) were found in 71 of 78 canned foods that were tested. In some of the cans that were tested the level of BPA reached 730 parts per billion. This report furthers the Congressional call to put a ban on BPA, as previously the target was a ban on BPA in children’s products.
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Last week, Sen. Lautenberg(D-NJ) introduced the “Safe Chemicals Act of 2011,” an updated version of a similar bill he introduced last year. The bill cosponsored by Sens. Boxer(D-CA), Schumer(D-NY), and Klobuchar(D-MN) aims to reform the current Toxic Substances Control Act(TSCA). According to the press release from Sen. Lautenberg’s office the bill will “give EPA more power to regulate the use of dangerous chemicals and require manufacturers to submit information proving the safety of every chemical in production and any new chemical seeking to enter the market.”
The updated bill has some changes from the one the senator introduced last year. The bill establishes a risk-based approach so that the EPA can determine the highest-risk chemicals and focus on those. The bill requires the EPA to place chemicals in one of three classes, the first class of chemicals being those that pose an immediate risk. The second being those that require a “safety standard determination.” The third class is for those chemicals that do not require immediate attention.
It would also require the chemical companies to submit basic data that will help determine risk of certain chemicals and whether further testing or restrictions are required. The legislation will also promote innovation, green chemistry and safe alternatives to those chemicals of concern.
A summary of the legislation can be found here.
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The Environmental Protection Agency’s toxic office is attempting to develop a new plan to help it make regulatory decisions under the Toxic Substances Control Act(TSCA). The current chemical action plans have been unable to obtain the appropriate data needed to make regulatory decisions, so the whole plan is being reconsidered. Some within the EPA believe this could be the beginning of the end for chemical action plans.
The EPA will still move forward in identifying chemicals of concern and taking the appropriate actions to address concerns. In the meantime, EPA appears set to introduce new rules under TSCA Section 6 later this year. Section 6 “gives EPA the authority to protect against unreasonable risk of injury to health or the environment from chemical substances.” Whether any of the new rules the EPA plans to issue are the result of the chemical action plans is unknown at this time.
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The Toxic Substance Control Act of 1976 (“TSCA”) imposes various data reporting obligations on manufacturers and importers of chemical substances. Under TSCA Section 4, for example, EPA may require manufacturers of existing chemicals to conduct tests “to develop data with respect to the health and environmental effects” of existing chemicals. Similarly, TSCA Section 8 may obligate manufacturers to notify EPA of new data suggesting that a chemical poses risks to human health or the environment. Thus, in many cases, TSCA submissions to EPA include health and safety data.
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February 4, 2011 | Posted by Elise Rindfleisch | Topic(s): Toxic Torts
Yesterday the U.S. Senate Committee on Environment and Public Works: Subcommittee on Superfund, Toxics and Environmental Health held a hearing on "Assessing the Effectiveness of U.S. Chemical Safety Laws." Industry representatives—from SC Johnson, BASF and the American Chemistry Council—united with NRDC’s call for TSCA reform. Over 80,000 chemicals are listed in TSCA’s inventory. Yet only about a quarter of these listed chemicals are actually in commerce, and even a smaller portion are produced in large quantities. Panelists agreed that these significant chemicals should be the focus of a reformed regulatory scheme.
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As state legislatures returned last week, toxic chemical reform was a major focal point. Legislators in thirty states and Washington, DC introduced legislation that is focused on protecting people from harmful chemicals. The bills that were introduced focus primarily on five objectives:
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On December 21, 2010, the California Department of Toxic Substances Control (DTSC) issued a
“chemical information call-in” targeting manufacturers and importers of nanometals, nanometal oxides and
quantum dots. http://www.dtsc.ca.gov/TechnologyDevelopment/Nanotechnology/nanometalcallin.cfm.
This request dramatically expands on a January 2009 DTSC call-in aimed solely at carbon nanotubes,
and broadly includes
• nanosilver,
• nano zero-valent iron,
• nano-sized titanium dioxide,
• nano zinc oxide,
• nano cerium oxide, and
• quantum dots.
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