For several years there have been increasing calls and a growing consensus among both activists and industry to reform the federal Toxic Substances Control Act (TSCA). This is the federal statute that allows the US Environmental Protection Agency (EPA) to review the safety of new chemicals before they are allowed to be commercially manufactured, and to restrict uses of existing chemicals in circumstances where they are found to present an unreasonable risk. TSCA has not been amended significantly in this respect since it was adopted in 1976. While TSCA was originally a model chemical control law for other nations, many other developed nations are now implementing more progressive chemical control regimes – most notably the European Community under its REACH legislation.
The Desire for TSCA Reform
A key concern with EPA’s implementation of TSCA has been the Agency’s reluctance to take action against useful chemicals in commerce that, over time, have come to be viewed by many as potentially harmful and capable of being phased out, such as BPA (a component of polycarbonate plastics and epoxy resins) and certain bromated flame retardants (e.g., PBDE). The extent of hazard and risk from particular chemicals is seldom clear cut even after extensive study, particularly at low concentrations. When these chemicals are also in widespread and productive use with embedded constituencies, requiring changes can be costly to both individual companies and society as a whole, and TSCA requires as assessment of these impacts and control alternatives to assure the balance between societal cost and risk is appropriate. This kind of analysis and rulemaking is understandably difficult for EPA, and it has undertaken it only rarely. It instead has used other means to persuade companies to eliminate disfavored uses or otherwise exercise appropriate care.
States Take the Lead
In the absence of federal action on chemicals, many states have undertaken action on their own to restrict uses of certain chemicals, or certain chemicals in particular products (e.g., a variety of metals in packaging inks and materials; BPA in children’s toys and reusable food containers; and PBDE flame retardants in many goods in excess of certain thresholds). Short of direct regulation, several states have developed lists of particular chemicals that warrant action. Even in the absence of current regulation, such listings are often viewed as signals of undue risk and harbingers of future action, which may persuade product manufacturers voluntarily to eliminate them from their products. To help better coordinate their policy and legislative efforts a number of states came together to form the Interstate Chemicals Clearinghouse in 2011.
Currently, the most significant and far reaching state legislation is in California, Maine and Washington. These go beyond mere chemical listings, or regulating individual chemicals for particular uses. These would establish programs to look broadly at chemicals used in types of consumer products in the respective states, and to require product manufacturers or downstream retailers to disclose and, in some cases, justify those uses or replace them with substitutes in light of an assessment of the alternatives.
- California’s green chemistry rules, referred to as the Safer Consumer Products” regulations, were profiled in our September 20, 2012 Environmental Leader article, “Preparing for Green Chemistry,” and are not expected to be finalized until next year. As discussed there, the rules will give the California Department of Toxic Substances Control the authority to require manufacturers of particular classes of products to identify and substitute “safer” chemicals for some product components, or to justify their continued use and to implement mitigating actions to prevent consumer exposure (e.g., take back programs).
- Maine is somewhat further along than California. Alternatives assessments for priority chemicals are already underway under Maine’s “Toxic Chemicals in Children’s Products” legislation. Currently limited to two priority chemicals (BPA and nonylphenol and nonylphenol ethoxylates), manufacturers of children’s products containing these, or other products (e.g., cleaning aids) that may expose children to them, were required to identify themselves to the State and develop an analysis of potentially safer alternatives. The first of these were due earlier this year, and Maine authorities reported commencing enforcement actions in June against companies that allegedly had submitted insufficient alternatives analyses. The State collects fees from the companies to pay a third party contractor to conduct these analyses if manufacturers fail to do so adequately.
- Washington’s “Children’s Safe Product Act” and regulations requires manufacturers of children’s products intentionally containing any one or more of more than 60 “Chemicals of High Concern to Children” to report to the State annually on the amount and use of the chemical in the product. These requirements are being phased in with the first reports recently due in September 2012.
Industry Prefers Uniform Product Content Rules
While these consumer product content control initiatives are limited to just a few chemicals now, the groundwork is being established for much broader state initiatives — and the emergence of a patchwork of differing and potentially inconsistent state laws governing consumer product content. TSCA currently does not preempt such state laws, and a desire to avoid a patchwork approach with uniform, national product content rules is a prime industry motivation driving support for appropriate TSCA reform, much as the 2008 federal Consumer Product Safety Improvement Act (CPSIA) replaced differing state laws with federal standards for lead, cadmium and phthalates in children’s products.
2012 Election Maintains Status Quo
At the beginning of the first Obama Administration, when Democrats controlled Congress and the White House, it was widely expected that TSCA reform finally would be enacted. In preparation for the anticipated legislative debate, interest groups on all sides of the issues prepared position papers addressing how TSCA should be reformed. However, for a variety of reasons, proposed reform legislation was not acted on before Republicans took control of the House of Representatives in 2010. After the election, with a more equal balance of power, TSCA reform negotiations broke down. Sen. Frank Lautenberg’s (D-NJ) TSCA reform bill was criticized by industry, for among other reasons, establishing practically unattainable standards, and failing to address preemption. Industry and Republicans were criticized for not proposing their preferred resolution of the many TSCA issues by preparing and sharing their own draft legislation. Sen. Lautenberg’s bill was ultimately passed by the Senate in 2012, but the House has never taken it up. TSCA reform became one more issue deferred until after the election.
A Republican White House victory and shift in power may have changed the dynamics in the Congress and enabled industry to win support for more moderate, incremental TSCA reform. Indeed, in recent months, for the first time, there have been reports that Senate Republicans were preparing their own TSCA reform bill. This would have been a major step forward toward compromise legislation. However, Mr. Obama’s re-election and the two parties’ continued split control of Congress suggests more of the same.
Future State and Federal Chemical Regulatory Initiatives
In the absence of TSCA reform, state chemical initiatives are expected to continue, mature, and perhaps proliferate, depending on the success of early the adopters in Maine and California. While there is some evidence that states are seeking to take consistent approaches at the margins (e.g., Maine’s reporting procedures are designed to be consistent with those in Washington to aid both product manufacturers’ reporting and data sharing between states), these programs are not likely to generate uniform standards, and manufacturers ultimately will need to develop 50-state strategies.
The election results also signal that EPA will continue to be active in this area – exercising its existing TSCA authorities in new ways and to their full potential. There are several EPA chemical regulatory initiatives under TSCA that have been stalled under White House review for many months. With the election behind it, we may see the Office of Management and Budget release EPA’s first ever list of priority chemicals deemed to present an unreasonable risk of injury to human health or the environment. The proposed list contains only a small number of substances currently, but more may be added and may be used by states and private companies alike to select chemicals for action. Other EPA proposed rules pending release would reduce confidentiality protection for certain chemical identity information submitted to EPA, and establish broad reporting requirements for those who manufacture or use nanoscale (ultrafine) particulate substances. This is understood as a precursor to possible further action rulemaking to lock in those uses and prohibit any different uses of such materials without prior EPA review.
James G. Votaw is a partner in the Washington, D.C. office of Manatt, Phelps & Phillips. His practice focuses on conventional, nanoscale, industrial, pesticidal and specialty chemical product regulation, policy and approval matters; environmental, health and safety law compliance auditing and enforcement defense, and associated business counseling and litigation issues. Mr. Votaw can be reached at (202) 585-6610 or email@example.com.
Peter R. Duchesneau is a partner in the Los Angeles office of Manatt, Phelps & Phillips. His practice focuses on environmental law involving litigation, administrative proceedings, regulatory compliance and business transactions. He holds a B.S. degree in Chemical Engineering, is admitted to practice before the U.S. Patent and Trademark Office, and has significant experience with emerging chemicals and counseling clients on regulatory compliance involving green chemistry and other matters. Mr. Duchesneau can be reached at (310) 312-4209 or firstname.lastname@example.org.
This column is part of a series of articles by law firm Manatt, Phelps & Phillips, LLP’s Energy, Environment & Natural Resources practice. Earlier columns have discussed California’s Pharmaceutical Waste Handling Law, Green Chemistry Regulation, The Case for Dam Removal, Sustainable/Energy Retrofits of Commercial Buildings, Demand-Response and Energy Efficiency Programs, California’s Cap and Trade Program, Demise of Redevelopment in California, What’s Next for the Renewable Power Industry and Renewable Energy Projects On Tribal Lands.