DTSC Delay of Official Draft SCPA Regulation Is Too Coincidental

Green Chemistry Regulations:

As of Friday, stakeholders have reason to doubt the assertions of good faith by the Department of Toxic Substances Control (DTSC).  As readers will undoubtedly know, DTSC has made a concerted effort to reassure stakeholders that it’s operating in good faith – protecting the interests of all stakeholders – when drafting the Safer Consumer Product Alternatives (SCPA) Regulation.  There are YouTube videos and Facebook feeds, and many public meetings have been held.  That facade crumbled Friday.

Last week, DTSC made known that it was deferring until April publication of the official draft of the SCPA Regulation.  The regulation had been scheduled for publication this month, launching the formal rulemaking process.  The delay in itself wasn’t necessarily bad; DTSC could have needed time to refine the regulation in response to the hundreds of pages of public comments it received on the last informal draft. 

On Friday, however, Director Raphael’s confirmation hearing was scheduled for — you guessed it — this month, March 28 to be exact.  Surprise!  So, gone is the opportunity for questioning on the official draft.  No one at the hearing will know – except DTSC staff and other insiders – what the formal draft looks like.  One has to ask:  Why the secrecy?  Why the avoidance?

Delaying publication until after the DTSC Director’s confirmation hearing arguably signals a lack of good faith.  The timing in no way appears coincidental.  One would be justified in expecting the impending draft to be quite controversial.  Whose ox is getting gored is anyone’s guess, although suspicions abound given the deaf ear DTSC has recently turned to a number of industry’s legitimate concerns (e.g., hazard identification, de  minimis thresholds).

Stay tuned for more posts on this impending and important regulatory development. 

OSHA Requests Public Comment on Extending the Information Collection Requirements in the Cadmium in General Industry Standard


On March 6, 2010, the Occupational Safety and Health Administration (OSHA) published a Federal Register notice (77 FR 13359), requesting public comments concerning its proposal to extend the Office of Management and Budget’s (OMB) approval of the information collection requirements set out in the Cadmium in General Industry Standard (29 CFR 1910.1027).  The proposal would extend current requirements into 2015.  According to OSHA, the industries likely to be effected include chemical mixers, utilities, and electroplaters.  OSHA estimates that nearly 50,000 facilities are covered by the rule.  The agency is requesting public comments to ensure that information collection occurs in a way that minimizes paperwork and related burdens on employers.  The docket includes both the FR notice and OSHA’s Information Collection Supporting Statement.  

Requirements Proposed for Extension

According to OSHA, the information collection requirements in the Cadmium General Industry Standard  protect workers from the adverse health effects that result from their exposure to cadmium.  The major information collection requirements of the Standard include:  

  • conducting worker exposure monoring,
  • notifying workers of their cadmium exposures,
  • implementing a written compliance program,
  • implementing medical surveillance of workers,
  • providing examining physicians with specific information,
  • ensuring that workers receive a copy of their medical surveillance results,
  • maintaining workers’ exposure monitoring and medical surveillance records for specific periods, and
  • providing access to these records by OSHA, the National Institute for Occupational Safety and Health, the worker who is the subject of the records, the worker’s representative, and other designated parties.

Topics for Public Comment

OSHA is particularly interested in public comments on the following topics:

  • whether the proposed information collection requirements are necessary for the proper performance of the agency’s functions, including whether the information is useful;
  • the accuracy of OSHA’s estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
  • the quality, utility, and clarity of the information collected; and
  • ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.

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Additional information on OSHA general industry requirements and guidance materials may be found on OSHA’s website.

Environmental Advocates Want Disclosure of Chemicals in Consumer Products

Chemicals in Consumer Products:

Researchers at the Silent Spring Institute argue that the findings of their consumer product evaluation illustrate the need for full disclosure of ingredient information. The Institute tested consumer products — ranging from toothpaste to laundry detergent — for compounds identified as either endocrine disruptors or asthma-related. Most products evaluated by the Institute included one or more “chemicals of concern.”  In their report, the researchers emphasize that current chemical testing and product labeling requirements do not prevent the use of hormone disruptors or asthma-associated chemicals in products or provide enough information for consumers to avoid them. Silent Springs published its findings in the March 8, 2012 issue of the National Institute of Environmental Health Sciences’ Environmental Health Perspectives.  The report has proven highly controversial and been severely criticized by industry for a flawed methodology and equating the mere presence of a chemical in a product with a lack of product safety.

The Institute, and other environmental and public health advocates, clearly plan to use the report to support their arguments for robust reforming of TSCA, the primary federal statute for regulating chemicals in the United States.  Such advocates argue that many consumer products contain chemicals known to adversely affect human health. They note that for numerous common commercial chemicals, information about their presence in consumer products is limited. In particular, little information is available about hazardous chemical exposures from personal care and cleaning products.

The Institute found 55 chemicals of concern in conventional and “green” consumer products. The evaluation assessed consumer products for the presence of 66 known endocrine disruptors and asthma causing chemicals. Tested consumer products ranged from toothpaste to laundry detergent. The researchers found bis-2-ethylhexyl phthalate, diethanolamine, and glycol ethers in high concentrations. They found phthalates, monoethanolamine, alkylphenols, parabens, and cyclosiloxanes in many of the products.  Sunscreens and scented products such as air fresheners and dryer sheets contained both the largest number of target chemicals and some of the highest chemical concentrations. However, the Institute did not report whether these chemicals were present above limits setting safe levels of exposure.  For example, the National Institute for Occupational Safety and Health recommends diethanolamine exposure be limited to 3 parts per million.

The researchers allege that regulations require only limited product labeling, thereby limiting the information available to consumers.  Personal products such as sunscreens, deodorants, and anti-bacterial hand soaps are largely regulated as over-the-counter drugs by the FDA. FDA regulations mandate only that “active” ingredients be identified on product labels.  The Institute asserts that EPA has primary regulatory oversight of cleaning products, and only when these products are pesticide products (e.g., products that will kill bacteria and viruses) is active ingredient labeling required. Many consumer products call themselves “natural,” “non-toxic,” and “green;” however, the Institute contends that these terms are unregulated and the chemical contents of such products do not necessarily differ from comparable products.

The Institute also argues that gaps in ingredient information are also problematic for regulators.  It argues that EPA, for example, relies on ingredient concentrations in products for exposure modeling. 

And lastly, the researchers conclude that further study of the risks posed by the types of chemical mixtures that are found in personal care products, cleaning products, etc. are needed to understand their effects on human health.

US News, Forbes, Consumer Reports, and many other news outlets have published stories on this report.

EPA Releases Draft Chemical Regulation Priorities for Fiscal Year 2013

Chemical Regulation:

Readers interested in EPA FY 2013 plans may wish to review the Agency’s draft National Program Manager (NPM) Guidance plans. The draft plan from the Office of Chemical Safety and Pollution Prevention (OCSPP) discusses priorities for the Office of Pesticide Programs (OPP), the Office of Pollution Prevention and Toxics (OPPT), and regional priorities. Also addressed are OCSPP efforts with respect to environmental justice and plans for collaboration among EPA programs and offices.

The NPM stresses EPA plans for Sustainable Materials Management (SMM) and Pollution Prevention (P2). SMM efforts will work to reduce negative environmental and societal impacts across material life. P2 programs will facilitate the development of safer, “greener” materials and products. A key element of P2 efforts is the Agency’s green chemistry program. (See e.g., Design for the Environment–EPA’s Safer Product Labeling Program for further information on EPA’s Green Chemistry efforts.)

Hazard assessment and risk management will comprise OCSPP efforts to address disproportionate risks to children and other vulnerable populations. In addition, OCSPP plans to build on existing activities to meet environmental justice goals.

The NPM also reports that OCSPP and the Office of Enforcement and Compliance Assurance (OECA) will continue efforts to enhance collaboration between the two offices to enhance Agency efforts to protect the public and environment from chemical risks.