GlobalChem 2013: Local rules not OK

22 February 2013 10:29  [Source: ICB]

California's controversial regulatory effort to control chemical components in consumer products may trigger similar moves by other states - or maybe not. Sometime this year, California's Department of Toxic Substances Control (DTSC) is expected to begin enforcement of its long-pending Safer Consumer Products Regulation (SCPR), a ruling that was initiated nearly five years ago in 2008.

Cushion Rex Features

 Rex Features

The last thing chemical producers want is a patchwork of regulations across US states

Essentially, the regulation requires any manufacturer that uses any one of some 1,200 "chemicals of concern" as an end component in their consumer products to identify and examine the viability of safer alternative substances. If a safer alternative component chemical or substance is not feasible, DTSC will outline steps the manufacturer must take to ensure the product is safely used, disposed of and, ultimately, phased out.

The rule is somewhat less burdensome than when it was first proposed, with a list of chemicals of concern numbering some 4,500 substances.

CHAOS AHEAD?

An earlier draft of SCPR also set the triggering threshold for chemicals of concern at 0.01% of the end product. This has been abandoned in the latest iteration of the pending rule, with DTSC noting that the 0.01% threshold was not scientifically defensible, in part because most testing and analysis equipment cannot measure such miniscule amounts.

Instead, threshold criteria will be determined on a case-by-case basis as the SCPR is rolled out later this year.

Obviously, if California's SCPR was to be broadly mimicked in other states, chemicals producers and their manufacturing customers could face the kind of chaos that would put the consumer products market back to the days of wood, whalebone and stone tools.

State government interest in regulating chemicals in commerce has been percolating for several years, in part because of pressure from environmental and other interest groups seeking chemical-specific bans or restrictions. However, state legislators were also moved to act because US Congress has for years failed to reform and modernise the 37-year-old federal Toxic Substances Control Act (TSCA). This, the principal federal statute governing chemicals in commerce, has increasingly been seen as outdated, meaning state regulators have been pushed to act on their own.

In 2009, according to a report by the American Chemistry Council (ACC), there were 11 bills pending in eight states to establish green chemistry mandates. A dozen pieces of legislation across 10 states sought to enforce green cleaning products criteria, and 47 bills in 21 states sought bans on the use of bisphenol A (BPA) in consumer products. Not all of those measures became law, and since 2009 state legislators have seemed less eager to get into the chemicals regulation business.

NATIONAL RECOGNITION

"That pattern of states regulating chemicals because Congress has not revised TSCA has not been as big a threat in the last year or so as it was in the previous four or five years," explains Bill Allmond, vice president of government and public relations at the Society of Chemical Manufacturers & Affiliates (SOCMA). "It may be because some states are recognising there is a national effort and a national role in addressing chemicals in commerce," he adds. "While some states, such as California and Washington, threaten to implement their own controls regulations, we haven't seen too many other states latch on to the idea."

Washington state has a consumer products safety measure, known as Reporting List of Chemicals of High Concern to Children (CHCC), which took effect in mid-2012 and requires manufacturers of children's products to report to the state Department of Ecology if their end-use items contain any of the listed chemicals of concern.

Maine has a similar child protection procedure and chemicals of concern list, but the thresholds in that statute are seen to be much higher than the California law. In any event, Allmond says there has not been a great deal of concern raised among SOCMA's members about the Maine provisions.

Allmond suggests that state governments have become reluctant to initiate chemicals in commerce laws and regulations because such programs can take years of detailed and complex consultations - witness California's five-year process - and can impose cost burdens on state governments at a time when tax revenues are down and budgets are already tight.

Several state environmental regulators likewise would prefer to see the federal government resume its role as the principal regulator of chemicals in commerce.

Bill Allmond

"We don't wan't a patchwork of differing state requirements to emerge"

Bill Allmond
Vice president for government and public relations, SOCMA

Indeed, at the 2012 GlobalChem conference, regulators from Washington state and Maryland were among those who joined with chemicals sector officials in urging Congress to act sooner rather than later on TSCA reform. Carol Kraege, toxics policy coordinator for Washington's Department of Ecology, and Kathy Kinsey, deputy secretary at the Maryland Department of Environment, both said their governments would prefer not to take the initiative in chemicals regulation and would in large measure defer to the federal enforcement in this area, if Congress was to modernise and reform TSCA.

That is not to say, however, that SOCMA and other segments of the US chemicals industry are not concerned about the California law and its echoes in Washington and Maine. Even if states are not currently stampeding to mimic California, that could change.

AVOIDING A PATCHWORK

"We don't want a patchwork of differing state requirements to emerge," Allmond says. "We also have to pay attention to what California is doing, because it is precedent-setting. Many of the things that end up in US federal policy often begin in California. The California law could have a ripple effect, if the state actually implements it. Other states are watching and they can see how bumpy and long the road to implementation has been, even for a big state like California with all its resources. The cost of implementation is also a factor. This is not a cheap regulation to implement."

Allmond also notes that California regulators are now wrestling with how they are going to be able to review and certify potentially hundreds or even thousands of "safer" alternative product component submissions from manufacturers. "It is going to cost the state money, and they don't have those resources now," he says.

PRESSING FOR TSCA REFORM

To counter the possible spread of state-level chemicals regulations, SOCMA and ACC are pressing for action in Congress finally to come to terms on reform of TSCA. In the meantime, says Allmond, "One of the things we're doing is encouraging EPA [the federal Environmental Protection Agency] to more fully implement existing authority it has under TSCA."

It might seem contrary to industry interests to push for more regulation, but Allmond says it is in producers' long-term interests to help the EPA use the authority it already has, rather than wait for Congress to enact changes to TSCA. "If EPA does more of this, uses more of its existing authority under TSCA, that could help convince states they don't have to take matters into their own hands," he says.

ACC president and CEO Cal Dooley also emphasises the need to make full regulatory use of the existing TSCA while Congress, industry and other stakeholders struggle to achieve comprehensive reform of the law. "We are absolutely committed to reforming TSCA, and we are convinced that reform will help enhance public confidence in rigorous regulatory assessment of the safety of chemicals in commerce," he says.

"But if you look at the agenda of this year's GlobalChem, you can see that we're not waiting for legislation to find ways to improve TSCA function under the existing statute. We're working in a collaborative fashion with EPA and other regulators to find ways to enhance the assessment of chemicals in commerce. We also are fully committed to working as constructive partners in ensuring the effectiveness of TSCA."

  • Joe Kamalick is chief correspondent for the Americas for ICIS news. He is based in Washington DC, and covers regulatory and political affairs in the US capital

By: Joe Kamalick
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