Beveridge & Diamond
 

Update on State Efforts to Regulate Chemicals

Beveridge & Diamond, P.C., February 2, 2011

In the absence of major legislation to overhaul the federal chemicals management laws,1 states are stepping in.  As 2011 legislative sessions begin, a number of states, working together, are considering new policies and proposals intended to monitor and regulate the production, labeling, use, and disposal of chemicals and a wide range of products containing chemicals.  These initiatives raise concerns for chemical producers and users as well as product manufacturers and distributors.  This alert reviews these state developments.

Interstate Chemicals Clearinghouse

The environmental agencies of nine states (California, Connecticut, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, and Washington, along with the city of Portland, Oregon) have formally launched the Interstate Chemicals Clearinghouse (IC2).2  This initiative, under the auspices of the Northeast Waste Management Officials’ Association (NEWMOA), began in 2008.  It has held a number of workgroup meetings and webinars for its member state agencies as well as “supporting member” NGOs.  The formal launch in January 2011 is the result of a new Memorandum of Understanding and governance structure that cement the participation of the members.

IC2’s stated goals are to:

  • Avoid duplication and enhance the efficiency and effectiveness of state, local, and tribal initiatives on chemicals through collaboration and coordination;
  • Build agency capacity to identify and promote safer chemicals and products; and
  • Ensure ready access to high quality chemicals data and assessment methods. 

Toward these ends, the IC2 plans to build online databases for priority chemicals listed by government entities, hazard and toxicity information, chemical use information, and safer alternatives assessments.  Its Database Workgroup “has been reviewing a variety of chemicals databases from around the world and discussing how the Clearinghouse may develop its own data system to meet the needs of its members.”3  IC2 also plans to assist states with development of regulatory and voluntary programs, sharing of information and strategies, training to build regulatory capacity, and increasing collaboration with the U.S. Environmental Protection Agency.4  Notably, IC2 aims to share “outcomes on chemicals prioritization initiatives,” such that a chemical listing or restriction in one jurisdiction could more easily trigger similar—but not necessarily identical—requirements in other IC2 member states.

NEWMOA also operates the Interstate Mercury Education & Reduction Clearinghouse (IMERC),5 now in its tenth year.  Prior experience with that initiative demonstrates that IC2 may have a real impact on industry.  Among other impacts, IMERC has helped spur member states to enact and to some extent streamline a variety of mercury product labeling, notification, collection, phase-out, and prohibition statutes and regulations. 

According to its press release, IC2 is “inviting additional governmental entities, businesses, non-governmental organizations, academic researchers, consultants, and others to join them in the partnership.”6  Interested companies and trade associations may therefore bring their perspective to the table—as long as they “demonstrate support” for “reducing the use of toxic chemicals or the generation and release of toxic pollutants [and] promoting environmental sustainability,” and the IC2 Board of Directors votes to approve their membership applications.7 

Other State Initiatives

The National Caucus of Environmental Legislators (NCEL) recently announced that a variety of chemicals management-related bills would be introduced in at least thirty states and the District of Columbia in the current legislative session.8  According to NCEL, the bills are likely to include:

  • Comprehensive state laws (Connecticut, Illinois, Massachusetts, Michigan, Minnesota, New York, Oregon, Washington and Vermont);
  • Bisphenol A (BPA) phase-outs in children’s products and/or receipt paper (Connecticut, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, Tennessee, Texas and the District of Columbia);
  • Banning cadmium in children’s products (Florida, Kentucky, Maine, Maryland, Michigan, Mississippi, New Jersey and New York);
  • DecaBDE phase-outs (Alaska, Massachusetts, New York and the District of Columbia); and
  • State resolutions calling on Congress to overhaul the Toxic Substances Control Act (TSCA) (Alaska, California, Delaware, Georgia, Iowa, Maine, Massachusetts, Montana, South Dakota, Texas and Wisconsin).

While introduction is a far cry from passage, numerous green chemistry and chemical-specific regulations, such as restrictions on BPA in products, have been passed at state and local levels in recent years.9  Green chemistry regulatory provisions continue to be developed in California under its Green Chemistry Initiative.10  It should be noted, however, that issues related to chemicals did not make the “Top 11 for 2011” list of critical state legislative issues released by the National Conference of State Legislatures.11

In addition to their potential direct impacts on industry, these bills may affect the prospects for federal TSCA legislation.  Industry increasingly faces a patchwork of inconsistent and burdensome state and local chemical requirements.  Preemption of state laws is therefore a key motivation for industry support for TSCA reform.  However, the bills introduced during the last session of Congress by Democrats in the House and Senate would have removed even TSCA’s current, limited preemption provisions.12  The Environmental Council of the States issued a policy recommendation in 2010 supporting “congressional action on TSCA reform that ... ensures the preservation of state authority to protect citizens and the environment from toxic exposures and to manage chemicals of concern; and only restricts that authority if compliance with both state and federal law would be impossible.”13  In light of general Democratic, NGO, and state opposition to federal preemption of state legislation, a multiplicity of state chemicals management proposals may complicate stakeholder negotiations.

For more information, please contact Mark Duvall, mduvall@bdlaw.com, or Alexandra Wyatt, awyatt@bdlaw.com.

For a printable PDF of this article, please click here.   


1 See Beveridge & Diamond, P.C., “Prospects for TSCA Legislation in the 112th Congress” (Jan. 28, 2011), http://www.bdlaw.com/news-1049.html.

2 NEWMOA, Chemicals Clearinghouse (IC2), http://www.newmoa.org/prevention/ic2/index.cfm.

3 NEWMOA, IC2 Workgroups, http://www.newmoa.org/prevention/ic2/workgroups.cfm.

4 Ken Geiser and Terri Goldberg, “Envisioning the Future of the Interstate Chemicals Clearinghouse” (July 15, 2010), http://www.newmoa.org/prevention/webconferences/ plancom/IC2_Future.pdf.

5 NEWMOA, Interstate Mercury Education & Reduction Clearinghouse (IMERC), http://www.newmoa.org/prevention/mercury/imerc.cfm.

6 IC2 Press Release, “State and Local Governments Form Interstate Chemicals Clearinghouse to Promote Toxics Reduction” (Jan. 26, 2011), http://www.newmoa.org/prevention/ic2/about/pressrelease.cfm.

7 NEWMOA, IC2 Supporting Members, http://www.newmoa.org/
prevention/ic2/membership/supportingmember.cfm
.

8 National Caucus of Environmental Legislators, “At Least 30 States to Tackle Children’s Health and Toxics in 2011” (Jan. 18, 2011), http://www.ncel.net/base.cgim?template=bulletins_archive.   See also Safer Chemicals, Healthy Families, “30 States Nationwide to Announce Upcoming Bills to Protect Kids and Families from Toxic Chemicals on Wed. Jan 19” (Jan. 18, 2011), http://www.saferchemicals.org/2011/01/30-
states-nationwide-to-announce-upcoming-bills-to-protect-kids-and-
families-from-toxic-chemicals-on.html
.

9 See, e.g., Beveridge & Diamond, P.C., “Green Chemistry Developments at the State Level” (May 5, 2010), http://www.bdlaw.com/assets/attachments/05-05-10%20BD%20Client%20Alert%20-%20State%20Green%20Chemistry.pdf;

Beveridge & Diamond, P.C., “Bisphenol A: A Hot Topic at FDA, EPA, States, and the Courts” (Feb. 19, 2010), http://www.bdlaw.com/news-810.html.

10 See, e.g., Beveridge & Diamond, P.C., “California Announces It Will Not Adopt Green Chemistry Safer Alternatives Regulations for Consumer Products by the January 1, 2011 Statutory Deadline” (Dec. 30, 2010), http://www.bdlaw.com/news-1036.html; Beveridge & Diamond, P.C., “California Revises Proposed Green Chemistry Safer Alternatives Regulations for Consumer Products; State on Track to Finalize Regulations By Year End” (Nov. 19, 2010), http://www.bdlaw.com/news-995.html.

11 National Conference of State Legislatures, “Top 11 issues of 2011:  Fourth consecutive year fiscal conditions will dominate legislative sessions” (Dec. 16, 2010), http://www.ncsl.org/?tabid=21929.

12 See, e.g., Beveridge & Diamond, P.C., “Proposed Legislation Would Overhaul TSCA” at 11 (Apr. 23, 2010), http://www.bdlaw.com/news-852.html.

13 Environmental Council of the States, “Reforming the Toxic Substances Control Act,” Resolution 10-8 (approved Aug. 30, 2010), http://www.ecos.org/files/4195_file_Resolution_10_8_TSCA_reform.DOC.

  

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