The January 9, 2014, chemical spill in which 7,500 gallons of a coal processing chemical, 4-methylcyclohexane methanol, stored in an above-ground tank owned by Freedom Industries leaked into the Elk River upstream from the local water utility's intake pipe serving Charleston, West Virginia, has prompted new calls for chemical safety and security legislation. For instance, concerns have been expressed about the adequacy of information regarding chemical safety and health risks, an issue that has been repeatedly raised with respect to chemicals "grandfathered" under the Toxic Substances Control Act (TSCA). The Biobased and Renewable Products Advocacy Group's (BRAG™) report on the spill and call for new legislative action is available online.
In response to the spill and calls for new protections, on January 27, 2014, Senators Joe Manchin (D-WV), Barbara Boxer (D-CA), Chair of the Environment and Public Works (EPW) Committee, and Jay Rockefeller (D-WV) introduced the Chemical Safety and Drinking Water Protection Act of 2014. The bill would amend the Safe Drinking Water Act (SDWA) by adding Part G -- Protection of Surface Water from Contamination by Chemical Storage Facilities. The bill is intended to strengthen states' ability to prevent chemical spills such as that of January 9, 2014. A fact sheet regarding the bill is available online.
Bergeson & Campbell, P.C. (B&C®) has issued a memorandum providing an overview of the new bill. The memorandum is available online.
The Senate EPW Committee has scheduled a hearing on the "Examination of the Safety and Security of Drinking Water Supplies Following the Central West Virginia Drinking Water Crisis." The hearing is scheduled for February 4, 2014, at 10:00 a.m.
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.
In an article appearing in the January/February 2014 issue of The Environmental Forum, a publication of the Environmental Law Institute, the Biobased and Renewable Products Advocacy Group's (BRAG™) Lynn L. Bergeson and Kathleen M. Roberts discuss the latest developments in the U.S. Environmental Protection Agency's (EPA) approach under the Toxic Substances Control Act (TSCA) to biobased chemicals, and offer strategies on how biobased chemical manufacturers can best navigate current TSCA requirements.
"Sustainability is a watchword for many brand owners, especially those that market to consumers, and renewable chemicals can facilitate the marking off of many boxes on the 'environmentally preferred' checklist. One big box that remains unchecked and curiously sometimes unnoticed altogether is an understanding of the application of TSCA to renewable chemicals. We discuss here TSCA's requirements and restrictions, offer a few thoughts for stakeholders to assure the successful marketing of these chemical products, and explain why there is an urgent need for an even playing field within TSCA and its implementing regulations that will promote and not discourage the development of new, greener chemical substances."
The full article can be found here.
On January 9, 2014, 7,500 gallons of a coal processing chemical, 4-methylcyclohexane methanol, stored in an above-ground tank owned by Freedom Industries leaked into the Elk River just upstream from the local water utility's intake pipe serving Charleston, West Virginia. Regulators banned residents' use of the water for five days. Since the release, concerns have been expressed about the adequacy of information regarding the chemical's safety and health risks, an issue that has been repeatedly raised with respect to chemicals "grandfathered" under TSCA.
The incident has provided a new push for legislative TSCA reform. On January 13, 2014, Representatives Henry Waxman (D-CA), Ranking Member of the U.S. House Energy and Commerce Committee, and Paul Tonko (D-NY), Ranking Member of the U.S. House Energy and Commerce Committee's Subcommittee on the Environment and the Economy, sent a letter to the Subcommittee's Chair John Shimkus (R-IL) urging that he hold a hearing to "examine the regulatory gaps" exposed by the January 9 chemical spill in West Virginia. They assert in the letter that "[a]s [Congress] begin[s] to consider ideas to reform the Toxic Substances Control Act (TSCA), it is critically important that we understand how the law allowed a potentially harmful chemical to remain virtually untested for nearly forty years." A copy of the letter is available online.
On the same day, Lynn L. Bergeson, Managing Partner of Bergeson & Campbell, P.C. and Of Counsel to BRAG, was featured on the National Public Radio (NPR) program "All Things Considered" to discuss the chemical spill. Ms. Bergeson expressed her hope that the incident will spark new interest in TSCA reform. The press release on Ms. Bergeson's comments is available online.
To date, no hearing is scheduled on TSCA reform before the House Energy and Commerce Committee's Subcommittee on Environment and the Economy. The House Transportation and Infrastructure Committee is expected to hold a hearing on the spill sometime soon in Charleston, West Virginia. The Senate Environment and Public Works (EPW) Committee is also expected to hold a hearing on the spill.
Intuitively, entities in the "biobased" space may think the "naturally occurring" substance exemption under the Toxic Substances Control Act (TSCA), the law that governs chemical products in the U.S., applies to their "biobased" materials. The scope of the exemption is limited, however, and complications arise when companies mistakenly assume a material is naturally occurring and therefore exempt from TSCA.
Learn more about this important issue online.
As the new year begins, there are several predictions on the path for reform of TSCA. The vehicle for reform is expected to be S. 1009, the Chemical Safety Improvement Act (CSIA), bi-partisan legislation introduced last year by Senator David Vitter (R-LA), Ranking Member of the Senate Committee on Environment and Public Works (EPW), and the late Senator Frank Lautenberg (D-NJ). Senator Vitter and Senator Tom Udall (D-NM) are now working to move CSIA forward through the legislative process. A Law360 article recently published by Lynn Bergeson contains a detailed discussion of the significance and provisions of this legislation. With 25 bipartisan co-sponsors, CSIA is a "potentially politically viable framework for TSCA reform and renewed hope that badly needed modernization of this ancient law may occur."
Recently, Senator Vitter stated publicly that he expects to be able to move CSIA through the Senate toward passage this year. That task will face challenges. CSIA, or any TSCA reform legislation, will need to first pass the Senate EPW Committee. Its Chair, Senator Barbara Boxer (D-CA), is seeking amendments to limit CSIA's preemptive effect with respect to tougher state chemical laws like California's Proposition 65 and the Safer Consumer Products Regulations.
On December 18, 2013, President Obama announced that he will nominate Senator Max Baucus (D-MT) to be the next Ambassador to China. The nomination is expected to pass quickly and without much opposition. Senator Baucus serves as the Chair of the Senate Committee on Finance, the tax writing Committee. When he leaves the Senate, current Senate Committee on Energy and Natural Resources Chair Ron Wyden (D-OR) is expected to assume the chairmanship.
These moves will impact the fate of incentives for the biofuels and renewable chemicals and products industries, including whether and when the Senate considers a tax extenders package, or tax reform, among other tax policies impacting the industry.
It has been reported that the U.S. House of Representatives Energy and Commerce Committee's Subcommittee on Energy and Power Chair John Shimkus (R-IL) has listed reform of the 1976 Toxic Substances Control Act (TSCA) among his top priorities for 2014. Chair Shimkus has stated publicly that the House is still determining how best to draft and move TSCA reform legislation, but he expects a House TSCA reform bill to be introduced by the spring, with action on it likely next summer.
Chair Shimkus reportedly has also indicated that he expects no action on the Renewable Fuel Standard (RFS) in the House before the U.S. Environmental Protection Agency (EPA) promulgates its 2014 RFS rule. The oil and gas industry has been advocating for legislative action to repeal the RFS in spite of EPA's proposed 2014 RFS rule that would reduce required volume obligations for cellulosic biofuels, as well as advanced biofuels and corn ethanol. The biofuels industry has argued that no legislative action is needed given EPA's regulatory flexibility to modify gallon requirements as needed under the law.
This week, the Biobased and Renewable Products Advocacy Group (BRAG™) participated in the Biotechnology Industry Organization's Pacific Rim Summit on Biotechnology and Bioenergy in San Diego, California. The Summit included over 400 attendees with broad interest and involvement in biofuels and renewable chemicals. During the Summit, BRAG Executive Director Kathleen M. Roberts gave a presentation titled "The Here and Now of TSCA," in which she emphasized the criticality of including regulatory compliance into any company's commercialization plans, and outlined certain sections of the Toxic Substances Control Act (TSCA) applicable to biobased chemical manufacturers. Ms. Roberts highlighted the TSCA Inventory and Chemical Data Reporting (CDR) issues that can catch biobased chemical manufacturers off-guard and potentially lead to six-figure penalties, curtailed production, and/or very non-"Green" warnings and restrictions being required on labels and packaging. Her presentation helped clarify reporting thresholds and what role byproducts play in an entity's TSCA reporting requirements. A copy of the presentation is available online.
On December 4, 2013, EPA published a final rule requiring the electronic submission of certain documents under the Toxic Substances Control Act (TSCA). EPA is promulgating amendments to reporting requirements under TSCA Section 4 (including test rules and Enforceable Consent Agreements (ECA)), TSCA Section 5, TSCA Section 8(a) Preliminary Analysis Information Rule (PAIR) at 40 C.F.R. Part 712, and TSCA Section 8(d) Health and Safety Data Reporting Rules at 40 C.F.R. Part 716. A copy of the rule, including a more detailed description of the new reporting requirements, is available online. The rule will become effective on March 4, 2014.