Sen. Boxer releases new TSCA proposal; reform unlikely to pass this Congress.

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Yesterday, Sen. Barbara Boxer (D-CA), Chair of the Senate Environment and Public Works Committee, released her “counterproposal” to the bipartisan Chemical Safety Improvement Act (“CSIA”) to modernize the Toxic Substances Control Act (“TSCA”). The counterproposal, called the “Boxer Toxic Substances Control Act,” takes the form of a “redline” or amended version of a July 31 draft of the CSIA from Sens. David Vitter (R-LA) and Tom Udall (D-NM). Changes in the Boxer proposal include:

  • Strengthens testing requirements for chemical prioritization;
  • Specifies storage near drinking water sources as a factor in determining prioritization;
  • Authorizes EPA to regulate chemicals in mixtures and articles;
  • Removes state preemption provisions; and
  • Adds a fee system based on the number of chemicals EPA reviews.

The release of Boxer’s legislation this late in the Congressional session suggests that TSCA reform is unlikely to pass in the current Congress. Sen. Vitter criticized Sen. Boxer for releasing the latest CSIA draft to the press without his consent as “not a good faith effort to reach consensus but a press stunt/temper tantrum.” Sen. Boxer introduced her proposal along with a pointed “critique” [PDF] of the CSIA, finding fault with the CSIA’s long timetables for reviewing high-priority chemicals; “ambiguous and weak” standards for low-priority chemicals; preemption of state laws; failure to “ensure that chemical disposal and unintended releases, like the one in West Virginia, are covered by EPA reviews and regulations”; and lack of a fee system, among other issues.

Environmental groups increase pressure on EPA to release TSCA CBI rules.

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Following the August 21 filing of a petition by a coalition of health, environmental and labor NGOs, EPA is under increased pressure to release its much-anticipated proposed rule on Confidential Business Information (CBI) under Toxic Substances Control Act (TSCA). Represented by Earthjustice, the coalition – whose members include the Environmental Defense Fund, BlueGreen Alliance, and Breast Cancer Fund – is petitioning EPA to propose rules to (1) automatically sunset “affirmative CBI determinations” after five years and (2) establish procedures for “reassertion” of CBI claims.

The rules sought by the Earthjustice coalition are the same ones that the EPA’s Office of Inspector General (OIG) has urged the agency to adopt. Last spring, EPA told the OIG that a proposed CBI rule would be released by September 30, 2014, although the same rule was previously slated for release in spring 2014 and then August 2014. The proposed rule is expected to set time limits with automatic expiration dates and establish reassertion and re-substantiation requirements.

The coalition’s petition was filed under a general provision of the Administrative Procedure Act – rather than the citizens’ petitions provision in TSCA – meaning that the EPA must only respond “within a reasonable time.” Earthjustice attorney Marianne Engelmann Lado told Chemical Watch that the coalition “wanted the clock ticking to actually finalize a rule and get it out the door.” The petition is available to read online [PDF].

TSCA reform still faces obstacles in Senate.

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Congress’ efforts to pass legislation modernizing the Toxic Substances Control Act (TSCA) have flown under the radar in recent months, but this weekend, the Associated Press provided an update on the difficult path for TSCA reform in the Senate. The AP reports that during the summer, Senate Environment and Public Works Committee Chair Barbara Boxer (D-CA) rejected the revised version of the Chemical Safety Improvement Act (CSIA) presented to her by Sens. Tom Udall (D-NM) and David Vitter (R-LA). Sens. Boxer and Udall both agreed that the new draft’s state preemption provisions remained too broad and must be narrowed.

This latest draft has not been released publicly, although Sen. Udall said it makes “big progress” with regard to TSCA’s safety standard and stressed that it “is a huge improvement compared to the law as it stands now, and as it has stood since 1976.” In contrast, Sen. Boxer said the new draft does not make needed improvements to TSCA. Sen. Boxer pointed to the legislation’s long timelines for reviewing chemicals of concern, saying the bill “could leave nearly a thousand chemicals of greatest concern unaddressed.”

Sen. Boxer also told the AP she would propose a provision to specifically address toxic chemicals that could endanger drinking water, like the chemical MCHM that contaminated drinking water in a massive spill in West Virginia last January.

The AP article quotes NGO representatives from Safer Chemicals, Healthy Families and the Environmental Defense Fund as optimistic that TSCA reform will eventually pass. The American Chemistry Council, which backs the CSIA, has set passing TSCA reform as its top legislative priority, and spent almost $6 million in lobbying during the first half of the year.

CA's Safer Consumer Products Draft Work Plan: Clothing, cosmetics, and cleaning products all under consideration.

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Today, California’s Department of Toxic Substances Control (DTSC) released its draft Safer Consumer Products Priority Products Work Plan [PDF], identifying the following seven product categories to be evaluated under the program over the next three years:

  • Beauty, Personal Care, and Hygiene Products – including soaps, deodorants, lotions, cosmetics, and nail care products);
  • Building Products and Household, Office Furniture and Furnishings – limited to paints, adhesives, sealants, and flooring; and furniture/furnishings treated with flame retardants and/or stain resistant chemicals;
  • Cleaning Products – including air fresheners, floor cleaners, detergents, and window cleaners;
  • Clothing – including “fiber and textile materials worn on the body with the primary function of covering the body and/or providing protection against the elements”;
  • Fishing and Angling Equipment – such as fishing weights and gear; and
  • Office Machinery (Consumable Products) – such as printer inks, specialty paper, and toner cartridges.

Potential candidate chemicals across all the categories include many familiar chemicals that have come under various levels of regulatory scrutiny in recent years, including: phthalates and triclosan in beauty/personal care and cleaning products and clothing; brominated or chlorinated organic compounds and organophosphates, perfluorinated compounds, and Volatile Organic Compounds (VOCs) in building products; and bisphenols and VOCs in consumable products for office machinery.

The draft Work Plan also explains the processes used to select the listed product categories, which employed seven different screening approaches – Hazard Trait and Endpoint; Route of Exposure; Chemical Prioritization; Evidence of Exposure; Sensitive Subpopulation, Functional Use; and Existing Research/Nomination Process. Based on information generated from the screening approaches, DTSC prioritized product categories with certain attributes, such as categories with chemicals observed in biomonitoring or indoor air quality studies, or categories that include product-chemical combinations that impact sensitive subpopulations. DTSC explains that the draft Plan is intended “to provide a level of predictability” to manufacturers, consumers, and other stakeholders.

Also today, DTSC announced the dates for the rescheduled public workshops to discuss the draft Work Plan. The first workshop will be held on September 25 at the Cal/EPA Headquarters in Sacramento; the second will be on September 29 at the DTSC Cypress Regional Office in Cypress. More details on the workshops, including agendas, are available here.

Comments from the public are being accepted on the draft Plan through October 13.

 

National Research Council advises EPA on sustainability-based decision-making.

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A new report advises the U.S. Environmental Protection Agency (EPA) to consider incorporating sustainability concepts used in the agency’s Design for Environment (DfE) program in its new chemicals screening process as it evolves, suggesting a new direction for Toxic Substances Control Act (TSCA) reform. The National Research Council (NRC) says that EPA should incorporate into its decision-making process an integrated strategy for evaluating effects on the three dimensions of sustainability – environmental, social, and economic – across all the agency’s activities.

This week, the NRC, the principal operating agency of the National Academies, released its report, Sustainability Concepts in Decision-Making: Tools and Approaches for the US Environmental Protection Agency. The NRC found that a wide variety of tools are available for the agency to use in integrating sustainability concepts into its decision-making, while declining to give “prescriptive advice” on “the use of specific tools and specific decisions” and recognizing that incorporating sustainability into EPA decision-making will be an “evolutionary process.”

The NRC’s report elaborates on issues left unresolved in the NRC’s 2011 report, Sustainability and the U.S. EPA (also known as the Green Book); this new report was commissioned by EPA “to examine applications of scientific tools and approaches for incorporating sustainability considerations into assessments that are used to support EPA decision-making.”

The report includes among five case studies examining how EPA could incorporate sustainability tools into its decision-making the agency’s DfE program. The NRC recommends that EPA use a “systems-thinking approach,” in contrast to the agency’s traditional focus on reducing releases from specific source categories. Likewise, in regulating products, EPA is urged to consider potential life-cycle effects of business processes along the entire value chain. In particular, the report advises EPA to consider applying lessons learned from the DfE program to the new chemicals screening process under TSCA. The NRC highlights the following approaches from the DfE program:

  • Convening public-private partnerships;
  • Using a variety of screening-level and quantitative analytic tools (like life-cycle analysis and alternatives assessments) relevant to sustainability; and
  • Using a variety of indicators (ecotoxicity, human toxicity, bioaccumulation, and environmental persistence) relevant to sustainability.

EPA is also advised to look to the private sector’s sustainability expertise to learn about tools used outside the agency, and to convene the private sector and NGOs “to define and implement value-chain-wide goals and performance outcomes.” In addition, the NRC recommends that EPA work to share insights and best practices learned from leading companies with other businesses.

CA Safer Consumer Products draft Work Plan postponed.

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California’s Department of Toxic Substances Control (DTSC) announced earlier this month that it has rescheduled two workshops to discuss the draft Priority Products Work Plan under the state’s Safer Consumer Products (SCP) program.  The Work Plan workshops, originally scheduled for August, have been postponed until September, although specific dates have not yet been announced. According to DTSC’s email announcement, the workshops will provide “an overview of the Work Plan and will explain the process by which future Priority Products will be chosen from the product categories.” DTSC also stressed that the Work Plan would not apply requirements on any regulated entities but instead “is only intended to provide signals to the marketplace regarding the scope of product categories that will be under evaluation over the next three years.”

Chemical Watch reports that the agency is using the extra time to “refine” the categories of products and substances to be prioritized for review, including “incorporating corporate feedback to fill data gaps.” This effort may be to avoid the controversy and criticism DTSC received after choosing spray polyurethane foam containing unreacted diisocyanates as one of the first products to be regulated under the SCP program.

EPA seeking feedback on new logo for Design for Environment label.

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Yesterday, the EPA’s Design for the Environment (DfE) program announced two listening sessions to solicit public input as part of the process of redesigning the new logo for the voluntary product labeling program. Chemical-based products – like cleaning solutions and laundry detergents – bearing the DfE label must meet certain standards that exclude ingredients that have been identified as chemicals of concern. Four proposed design concepts for the new logo are posted online. EPA’s stated goals for the new logo are:

  • Better convey the scientific rigor of EPA’s product evaluation and the benefits to people and the environment with a label that is easier to display on products, materials, and in digital media;
  • Increase buyers’ recognition of products bearing EPA’s Safer Product Label; and
  • Encourage innovation and development of safer chemicals and chemical-based products.

E&E News reports that industry groups are concerned with the logo redesign, quoting American Chemistry Council president Cal Dooley at a conference earlier this year calling the DfE program “unprecedented” in terms of the label’s “potential for significant market implications.” Dooley also expressed doubt that DfE met the Federal Trade Commission’s Green Guides guidelines for private labeling programs.

EPA’s listening sessions will be held as webinars on August 4 and 5, 2014, from 1pm to 2pm Eastern Time; participants must register no later than August 1. Comments are also accepted on the DfE label website. According to the Federal Register announcement, although EPA “does not intend to formally respond to all comments that are submitted, EPA will consider the information gathered from this notice and other sources as it selects a new DfE logo.”

House holds hearing on Constitutional issues with focus on TSCA reform.

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Last Friday, the House Energy and Commerce Committee’s Subcommittee on Environment and the Economy heard testimony from legal experts on whether the Constitution’s Commerce Clause requires the preemption of state laws that are more stringent than federal ones. The hearing, titled “Constitutional Considerations: States vs. Federal Environmental Policy Implementation,” considered the scope and limitations of federalism in environmental policy generally. Witnesses and subcommittee members alike addressed the preemption concerns in the context of Congress’ recent attempts at modernizing the Toxic Substances Control Act (“TSCA”), along with other issues, including the regulation of fracking. The witnesses testified on how federal environmental laws are grounded in the Constitution and run the gamut in terms of preemption and cooperative federalism. In particular, in a back-and-forth with Rep. Paul Tonko (D-NY), Professor Rena Steinzor of the University of Maryland School of Law characterized the broad federal preemption of state regulatory programs as “unwise” as well as not required under the Constitution. Prof. Steinzor also stated that the preemption schemes in current TSCA reform proposals did not comport with the principles of cooperative federalism.

Background material and prepared testimony from the witnesses is available here; a video of the hearing is available on YouTube.

EPA issues two sets of SNURs by direct final rule.

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Today, EPA released a pre-publication version of Significant New Use Rules (SNURs) for 43 chemicals under the Toxic Substances Control Act (TSCA). All 43 substances have been subject to Premanufacture Notices (PMNs) and six of them are subject to section 5(e) consent orders, where EPA determined that activities associated with the substances may present unreasonable risk to human health or the environment. The SNURs are being promulgated by direct final rule and will be published in the Federal Register tomorrow, July 9.

The new SNURs cover a wide range of chemicals, including perfluorinated chemicals and lithium salts, in a variety of industrial uses, from herbicide intermediates to surfactants for laboratory use fluid.The SNURs impose various recordkeeping, notification, protective and other requirements on persons engaging in a “significant new use,” i.e., any use outside the use scenarios identified in the applicable PMNs or without specified protective measures, in the case of the 5(e) SNURs.

These 43 SNURs come a day after another set of 13 SNURs which were published in today’s Federal Register, all of which were subject to PMNs and three of which were subject to section 5(e) consent orders. Two of the substances covered in this set of SNURs are identified as carbon nanotubes.

The SNURs applying to the substances subject to section 5(e) consent orders are “based on and consistent with the provisions in the underlying consent orders.” The other substances subject to the new SNURs met the criteria of concern established at 40 CFR § 721.170.

Both sets of SNURs will go into effect 60 days following publication in the Federal Register (September 8 and 9) unless EPA receives written adverse or critical comments, or notice of intent to submit such comments, within 30 days of publication (August 7 and 8).

EPA recognizes industry leaders using safer chemicals, reiterates need for TSCA reform.

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Making products with safer chemicals meets consumer demand while improving companies’ bottom lines and benefiting human health and the environment at the same time, says EPA Assistant Administrator for Chemical Safety and Pollution Prevention Jim Jones. Today, Jones wrote on the agency’s “EPA Connect” blog to highlight several U.S. companies leading in the area of safer chemicals in consumer products, including as partners in EPA’s Design for Environment (DfE) program. Jones lauded these product makers and retailers for “advancing industry beyond the safety ‘floor’ set by the outdated Toxic Substances Control Act (TSCA).”

Acknowledging that the absence of a DfE label does not necessarily mean a product is unsafe, Jones points out that the DfE label promotes supply chain transparency: “With the DfE label, you know what is going into a product and that the formula is the safest for human health and the environment based on the best available science and protective criteria—above and beyond the minimum legal requirements set by existing TSCA.”

Jones’ focus on the need to update TSCA, which has been the subject of significant legislative activity this session, is consistent with his previous public statements. In today’s post, he pledged EPA’s continuing commitment to its DfE partners regardless of the outcome of the current TSCA reform effort.