States Pursue Toxics Lawmaking Despite Federal Law Constraints

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By Pat Rizzuto

Legislation that would require the disclosure of or restriction of chemicals in hydraulic fracturing fluids, cosmetics and other products had been introduced in 16 states as of Feb. 10.

Another five states are expected to have chemical legislation introduced later this year, Sarah Doll, national director of Safer States, told us Feb. 8. Safer States is a network of environmental health and other state-based organizations.

States are working in an uncertain space. The 2016 overhaul of the Toxic Substances Control Act allows some state chemical controls. It also preempts state controls that would replicate or conflict with regulations and other decisions it requires the federal Environmental Protection Agency to make. The line between what a state can and can’t do is unclear.

Upholstered furniture, food packaging, shipping pallets, wheel weights and brakes are among the types of products divergent bills would cover, according to the legislation, which is available through Safer States’ bill tracker.

Companies making such products, retailers selling them, state agencies and water utilities are among the types companies or institutions that could be covered by the proposed laws or subsequent implementing regulations.

Flame retardants, bisphenol A, cadmium, formaldehyde, lead and perfluorinated chemicals are among the chemicals that would be targeted.

Example Bills

Example bills include:

  •  California’s SB 258, which would require manufacturers as of Jan. 1, 2018, to disclose ingredients used in cleaning products, including fragrances, on the product label and online;
  •  Maine’s LD 182, which would prohibit the sale and distribution as of Jan. 1, 2018 of new upholstered furniture containing 0.1 percent or more of flame retardants such as halogenated, phosphorus-based, nitrogen-based, nanoscale chemicals;
  •  Maryland’s HB 66, which would prohibit tire manufacturers, motor-vehicle repair shops, retailers and certain other businesses from using, allowing use of or selling lead or mercury wheel weights after dates that would be established by the law;
  •  Minnesota’s HF 727 and SF 716, which would require companies to disclose trade secret and other information about chemicals in children’s products to the state’s Pollution Control Agency. The agency would establish a list of chemicals of high concern by July 1, 2010, and collect a fee of $1,000 for each priority chemical initially reported.\;
  •  New York state’s S 1928 and A 1732, both of which would require disclosure of chemicals used in oil and gas well drilling and hydraulic fracturing;
  •  Washington state’s HB 1744, which would ban as of July 1, 2018, food packaging containing any amount of perfluoroalkyl and polyfluoroalkyl chemicals, defined as chemicals that contain “multiple carbon-fluorine bonds, but are not exclusively composed of carbon and fluorine including, but not limited to, poly- or perfluorinated compounds.”
Legislation likely to pass, because it has been discussed and refined during previous legislative sessions, includes California’s cleaning ingredient disclosure bill; fragrance disclosure legislation in Rhode Island; and a variety of New York bills that would either require ingredient disclosure or restrict chemicals of concern, Doll said.

 

Bills targeting flame retardants in products also are likely to have traction, she said.

Years Before Action

State legislative and regulatory action on chemicals was a key driver spurring industry to support TSCA reform.

States are developing their own chemical policies despite last year’s overhaul of the chemicals law, because it could take the Environmental Protection Agency hundreds of years to assess just those chemicals produced in quantities over a million pounds per year, Doll said.

The EPA has 10 chemical risk evaluations underway as required by amended TSCA. The agency must complete each risk evaluation within three to 3.5 years.

By December 2019, the number of high-priority chemicals being evaluated must reach 20. Thereafter, whenever the agency finishes one risk evaluation, it must launch another one.

If the agency concludes a chemical or specific use would pose an unreasonable risk, the law requires the agency to take final risk management action sufficient to ensure the chemical’s use would not pose an unreasonable risk. The risk management measures must be issued as final within two to four years.

Ample Room for States

States can regulate chemicals notwithstanding the amended federal chemicals statute, Adrienne Timmel, an attorney with Keller and Heckman LLP, said Feb. 8. She spoke during a webinar the law firm held discussing chemical prioritization under amended TSCA.

If the EPA has not taken any action about a chemical, states concerned about it can step in.

After the EPA identifies a chemical as a high priority—meaning the agency will evaluate its risks—states have about one year to regulate that chemical before the risk evaluation is launched, said Timmel, who works in the law firm’s Washington, D.C. office.

Before the EPA formally launches its risk evaluation, it is required to prepare a scope defining what concerns, chemical uses, exposures and populations its risk evaluation will consider.

States may regulate chemical uses outside the scope of the EPA’s risk evaluation, Timmel said.

Once the risk evaluation starts, a “pause preemption” kicks in. States generally cannot regulate the same chemical the EPA is evaluating if the state regulation would address health concerns, chemical uses and other issues the EPA is reviewing.

Some States Wait and See

States have room to regulate chemicals under amended TSCA, but many don’t have the capacity or desire to do so, Peter Hsiao, a partner with Morrison & Foerster LLP in Los Angeles, told us.

California, Massachusetts and other states with histories of addressing chemicals will remain active regarding chemicals, he said. Other states’ activity began to drop back at least a year ago, as TSCA modernization seemed possible, Hsiao said.

Bills also can be easily introduced, but Hsiao predicted legislatures will be more willing to wait and see. There’s a reluctance to develop in-state capacity if the EPA will be actively evaluating and managing chemicals, he said.

The lead-in-public-drinking-water crisis in Flint, Mich., where many residents still rely on bottled water, also has pulled states towards addressing health concerns that clearly are under their jurisdiction, Hsiao said.

The scope of chemical rules the amended law preempts is likely to be litigated, he said.

Information disclosure is one such area where ambiguity exists, Hsiao said.

To contact the reporter on this story: Pat Rizzuto in Washington, D.C., at prizzuto@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

Safer State's bill tracker is available at http://www.saferstates.org/bill-tracker/.

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