On January 28, 2014, the pro-safer chemicals coalition Safer States released a report in which it found that "at least 33 states are considering policies [to enhance chemical safety]. Some would change disclosure rules for manufacturers, so that concerned consumers will know what chemicals are in their products. Some would phase out the use of chemicals like bisphenol A, formaldehyde and toxic flame retardants." The report is available online.
There is increased momentum for chemical safety legislation in the wake of the January 9, 2014, chemical spill in West Virginia. Several bills have also been introduced at the federal level to increase chemical safety and security. In particular, the Chemical Safety and Drinking Water Protection Act of 2014 was introduced this week (see above). The bill will strengthen states' ability to prevent chemical spills. Additionally, the Chemical Safety Improvement Act (CSIA) was introduced last year to reform TSCA. CSIA has been criticized for having weak state preemption provisions. B&C has issued a summary of both bills, which are available here and here.
The ABA Section of Environment, Energy, and Resources Pesticides, Chemical Regulation, and Right-to-Know (PCRRTK) Committee Newsletter for November 2013 is a special issue devoted to Green Chemistry. Topics covered include the Federal Trade Commissions's enforcement of the Green Guides, EPA’s Design for the Environment program, Toxic Substances Control Act (TSCA) Reform, and the Green Chemistry Movement, and the role of public disclosure policies in the selection of greener chemistries. The newsletter is available online.
On August 28, 2013, California's Office of Administrative Law (OAL) approved the California Department of Toxic Substances Control (DTSC) Safer Consumer Products Regulations (Regulations). The Regulations took effect on October 1, 2013.
The Regulations are the much anticipated regulatory implementation of California's Green Chemistry Initiative. DTSC's implementing regulations have gone through several iterations, including an initial draft released on June 23, 2010, a revised draft released on November 16, 2010, an "informal draft" released on October 31, 2011, proposed regulations released on July 27, 2012, revised proposed regulations released on January 29, 2013, another revised proposed regulations released on April, 10, 2013, and revisions proposed on August 23, 2013 (the 15-day comment period for these last comments was open until September 9, 2013, despite the issuance of final Regulations). Memoranda providing background information on past iterations are available online. The Regulations and Final Statement of Reasons are available online.
The California Department of Toxic Substances Control (DTSC or Department) Safer Consumer Products Regulations (Regulations) take effect today. Memoranda providing background information on the Regulations are available online. The Regulations and Final Statement of Reasons are available online.
The most onerous requirements for "responsible entities" (i.e., manufacturers, importers, assemblers, and retailers) will not be felt until DTSC identifies the first Priority Products, that is, a consumer product containing a listed Candidate Chemical for which responsible entities must conduct an Alternatives Analysis (AA) to determine how best to limit potential exposures or the level of potential adverse public health and environmental impacts posed by the substance in the Priority Product.
There are, however, initial steps that companies can take to understand how these Regulations may affect operations in the near future. DTSC has created a Safer Consumer Products Web Portal where it has posted, and will continue to add, information pertinent to the Regulations. Please see BRAG's full memorandum, for more information.
On September 18, 2013, the 9th Circuit Court of Appeals reversed a December 2011 district court ruling and held that California's Low Carbon Fuel Standard (LCFS) does not violate the Dormant Commerce Clause of the U.S. Constitution on its face. The district court had sided with groups from the oil and gas, ethanol, and trucking industries and found that the LCFS violated the Dormant Commerce Clause because the statute gave higher carbon intensity values to out-of-state, Midwest, ethanol, putting that fuel at a disadvantage in California. At the time of the 2011 decision, the district court had also issued a preliminary injunction preventing the California Air Resources Board (CARB) from enforcing the LCFS.
In its decision this week, the appeals court held that the LCFS does not violate the Dormant Commerce Clause on its face, and it remanded to the district court whether the statute violates the clause "in purpose or in practical effect." The appeals court also vacated the preliminary injunction.
It has been reported that the ethanol industry is looking at their legal options in light of the appeals court decision.
On August 8, 2013, the Fifth District Court of Appeals denied a petition from the California Air Resources Board (CARB) for a rehearing of the case in which the court found on July 15, 2013, that CARB had improperly approved California's Low Carbon Fuel Standard (LCFS) in violation of administrative procedures (more information is available online). The July 15 decision stands and while CARB may continue to implement the LCFS, it must hold a new 45-day public comment period to receive input on the LCFS regulations, including CARB's calculation of indirect land use from the increased use of biofuels.