Consumer Product Safety Commission to Regulate Non-Polymeric Organohalogen Flame Retardants

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On September 20, 2017, the Consumer Product Safety Commission (CPSC or Commission) voted to regulate non-polymeric organohalogen flame retardants (OFRs).  With this vote, CPSC granted a petition from a group of NGOs to initiate rulemaking under the Federal Hazardous Substances Act (FHSA) to address hazards posed by the substances.  In addition, the Commission requested that manufacturers of children’s products, furniture, mattresses, and electronics casings immediately eliminate the use of OFRs.  The Commission also urged distributors and retailers to inquire about the existence of OFRs in their products.

The Commission noted that it has the authority to address products containing OFRs on a class-wide basis.  The Commission further noted that in order to determine that OFRs as a class constitute a “hazardous substance” under FHSA, CPSC need only determine that OFRs are toxic.  Under FHSA, a substance is toxic if it has the capacity to produce injury or illness through ingestion, inhalation, or absorption through any bodily surface, and may cause substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use of those products.

To address OFRs, CPSC will convene a Chronic Hazard Advisory Panel (CHAP) to assess and issue a report on the risks to consumers’ health and safety from the use of non-polymeric OFRs in the following products:

  • Durable infant and toddler products, children’s toys, child care articles and other children’s products;
  • Upholstered furniture sold for use in residences;
  • Mattresses and mattress pads; and
  • Plastic casings surrounding electronics.

The Commission also directed that a Guidance Document on Hazardous Additive, Non-Polymeric Organohalogen Flame Retardants be published in the Federal Register.  A prepublication draft of the Guidance has been released.

These actions by the CPSC come more than two years after Earthjustice and the Consumer Federation of America petitioned CPSC to adopt rules to protect consumers and children from the health hazards caused OFRs.  Groups joining the petition include the American Academy of Pediatrics, Consumers Union, and the International Association of Fire Fighters.

Clorox Sued for Deceptive Marketing Practices

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A group of consumers recently sued Clorox for unjust, unfair, and deceptive practices in misrepresenting the environmental and other benefits of “Green Works” products in violation of California and New York law.  The complaint was filed in the U.S. District Court for the Northern District of California.  Plaintiff’s seek class action status.

The complaint alleges that Clorox has made false representations that Green Works products are naturally derived, environmentally sound, and safer alternatives to other cleaning products.  For example, the complaint asserts that the products contain unnatural and harmful chemical ingredients which are associated with skin irritation, allergic reactions, immune system toxicity, and aquatic toxicity.

The complaint includes a number of charges that Clorox has violated California and New York law.  The complaint alleges that Clorox has violated California’s Consumers Legal Remedies Act with unfair methods of competition and unfair and deceptive acts and practices by falsely representing that the Green Works products are naturally derived, green, environmentally sound, and relatively safe products compared to other cleaning products.  It alleges that Clorox has violated California’s Unfair Competition Law by engaging in unlawful, fraudulent, and unfair conduct; that “misleading marketing, advertising, packaging, and labeling of Products is likely to deceive reasonable consumers.”  In addition, the complaint alleges that Clorox has violated New York General Business Law through false advertising concerning the Green Works products.

Remedies sought by the plaintiffs include relabeling to remove representations that the products provide “natural” benefits and are environmentally sound and naturally derived.  In addition, the plaintiffs seek restitution and that Clorox disgorge all revenues obtained as a result of its unlawful, fraudulent, and unfair conduct.

New Prop 65 Regulations Become Operative on August 30, 2018

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New consumer warnings will be required under California’s Prop 65 on August 30, 2018.  On September 2, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a final rule amending Article 6 of the regulations implementing Proposition 65 (Prop 65) that requires enhanced warning messages. Prop 65 requires a “clear and reasonable” warning on products that expose California consumers to chemicals of concern (“Prop 65-listed chemicals”).  The new regulation has changed what constitutes a “clear and reasonable” warning.  As the final rule becomes effective on August 30, 2018, businesses should begin to assess their products, consider the clear and reasonable warning requirements, and prepare for the deadline to minimize the risk of enforcement litigation.

The final rule imposes requirements on content and methods of transmission, which includes disclosure of one or more Prop 65-listed chemicals that resulted in the warning and an accompanying symbol.  An abbreviated warning, however, will be permitted when a company provides an “on-product” warning.  If an “on-product” warning is used, the business need not disclose the specific Prop 65 chemical(s).

Until the August 30, 2018 effective date, companies selling into California can use either the old or the new regulatory warnings. Indeed, businesses are not required to re-label products that are already in the stream of commerce.  OEHHA has ensured that “the regulations allow the old safe harbor warnings to remain and be considered compliant if the product was manufactured prior to the effective date of the new regulations.”  As such, if a business is selling into California, compliance with the new regulatory warnings must be in effect on all manufactured products on August 30, 2018.

It is prudent for businesses to begin the compliance process shortly because it will take time to assess which products are sold into California, to design new product labels and/or compliant materials, to approve such materials, and to implement the necessary changes.

EPA Announces Changes to the New Chemical Review Program

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In the wake of the 2016 amendment to the Toxic Substances Control Act (TSCA), the Environmental Protection Agency (EPA) has been focusing on streamlining new chemical review. On August 7, 2017, the Agency announced several related changes to the new chemical review process. Major reforms include:

  • Where a Premanufacture Notice (PMN) raises risk concerns, EPA will allow manufacturers to submit an amended PMN to address those concerns, and will base its judgment on the amended PMN.
  • Where EPA has concerns with product uses that can reasonably be foreseen but are not the intended uses described in the PMN, EPA’s concerns can be addressed through significant new use rules (SNURs).
  • Identification of reasonably foreseen conditions of use that are not addressed in a PMN will be fact-specific. EPA will find that a use is reasonably foreseeable where facts suggest that the use is not only possible but probable.
  • Section 5 testing orders will be confined to cases where they are necessary to reduce uncertainty in “unreasonable risk” findings, and will be structured to reduce or replace animal testing where appropriate.

EPA also announced that it will increase the full-time staff for new chemical review and will streamline related work processes. In addition, to help companies prepare PMNs, EPA will institute a voluntary pre-submission consultation process to provide submitters with a clear understanding of what information will be most useful for EPA’s review of their new chemical submission, and of what they can expect from EPA during the review process. Further support for submitters will be available this fall. EPA announced that it will publish for public comment draft guidance to provide more certainty and clarity regarding how EPA makes new chemical determinations and what external information will help facilitate these determinations.

Overview of TSCA Inventory Reset

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The Environmental Protection Agency (EPA) published the final rule establishing the process for TSCA “Inventory Reset” under the Toxic Substances Control Act (TSCA) on August 11, 2017. The final rule was effective as of the same day. The TSCA Inventory Reset process concerns chemical substances that are listed on the TSCA Inventory; it does not apply to every chemical substance in commerce, as many such substances are exempt from Inventory listing requirements. The Reset process is designed to identify which of the listed chemical substances are and are not actively in commerce. Inventory Reset is required by the Lautenberg amendments to TSCA.

Substances identified as “in commerce” will be placed on the “Active Inventory.” Substances not currently in commerce will be placed on the “Inactive Inventory.” Companies will not be able to lawfully manufacture, import, or process any chemical substance on the “Inactive Inventory” without first notifying the substance to EPA. The Active and Inactive Inventories will be created through “retrospective” reporting. Retrospective reporting requires companies to notify EPA regarding the non-exempt chemicals they manufactured or imported during the ten years prior to Lautenberg’s enactment (June 21, 2006 and June 21, 2016). Manufacturer/importer reporting began the day the final rule was published. Companies have 180 days to submit notifications. In addition, a subsequent 180-day reporting period, beginning April 9, 2018, is designated for reporting by processors. Companies may report substances that they processed during the ten-year look back period.

After retrospective reporting closes, EPA will formally establish the Active and Inactive Inventories. Once these Inventories are published, forward-looking reporting will be required before a company can lawfully manufacture, import, or process any chemical substance on the “Inactive Inventory.” In addition, EPA has designated the period between retrospective and forward-looking reporting as the “Transition Period.” The forward-looking reporting requirements are optional, but recommended, during this period.

Considerable effort to coordinate with the companies that manufacture and supply one’s raw materials will be required to ensure that these products remain available for use in the company’s commercial activities.

CDR Reporting Violations to Cost Ricoh Electronics $245,990

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EPA recently settled its case against Ricoh Electronics, Inc., for inaccurate reporting and recordkeeping of chemical substances imported by its facilities located in Tustin and Santa Ana, CA, and Lawrenceville, GA.  Under the settlement, Ricoh Electronics will pay a fine of $245,990.

These violations were found when the Agency inspected the company’s Chemical Data Reporting (CDR) submissions.  EPA reports that in 2012, Ricoh filed a timely, but inaccurate, CDR report of the total annual volumes of three chemical substances imported in 2011 at its Tustin facility, and one chemical substance imported at its Santa Ana facility.  In addition, the Agency found that the company did not have records documenting the quantity of 10 chemical substances imported to its Lawrenceville, Ga., facility in 2015.

CDR reporting under TSCA requires the companies submit information to EPA regarding the chemical substances that they manufactured of imported at volumes of 25,000 pounds or more.  Reporting is only required for substances listed on the TSCA Inventory.  The submission period for the most recent CDR data collection ended in October 2016.  Reporting will not be required again until 2020.

EPA Announces Superfund Task Force Recommendations

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Environmental Protection Agency (EPA) Administrator Scott Pruitt assembled a task force to provide recommendations on how to restructure and improve the Superfund cleanup process. On July 25, 2017, the Task Force announced its recommendations. The Task Force Report to Administrator Pruitt identified 14 strategies and 42 specific recommendations to achieve the following five goals:

  1. Expediting cleanup and remediation;
  2. Reinvigorating responsible party cleanup and reuse;
  3. Encouraging private investment;
  4. Promoting redevelopment and community revitalization; and
  5. Engaging partners and stakeholders.

The Superfund Program governs the investigation and cleanup of the nation’s most complex hazardous waste sites. The National Priorities List (NPL) includes those sites that are of national priority among these sites because of known or threatened releases of hazardous substances. Currently, there are 1,336 sites on the NPL, of which 1,179 are privately owned sites and 157 are federal facilities. Sites on the NPL are in various stages of remediation.

The recommendations of the Superfund Task Force are meant to improve and expedite the process of site remediation and promote reuse of the remediated sites.

Administrator Pruitt also issued a memo outlining 11 specific actions that should be implemented expeditiously to improve the Superfund program. These include maximizing deletions and partial deletions of sites off the NPL.

The Task Force will be implementing the strategies and recommendations throughout the next year.

EPA-Small Business Administration Meeting on Methylene Chloride in Furniture Refinishing

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On August 18, 2017 EPA announced a Public Meeting on Methylene Chloride in Furniture Refinishing in collaboration with the Small Business Administration (SBA) Office of Advocacy.

On September 12, 2017, EPA, in collaboration with the SBA Office of Advocacy, is holding a public workshop on the use of the paint remover, methylene chloride, in furniture refinishing. This workshop will inform EPA’s understanding of the use of methylene chloride in furniture refinishing. Federal and state governments, industry professionals, furniture refinishing experts, non-government organizations, and academic experts, among others, will discuss the role of methylene chloride in furniture refinishing, potential alternatives, economic impacts, and other issues identified in EPA’s proposed rule [insert hyperlink] regulating certain uses of methylene chloride.

The proposed rule deferred action on the use of methylene chloride in commercial furniture refinishing.  It proposed a prohibition on the manufacture (including import), processing, and distribution in commerce of methylene chloride for most other types of paint and coating removal.

Information from the September 12, 2017 meeting will allow EPA to better understand current work practices and obtain additional information on the economic considerations involved in selecting chemical products for paint and coating removal in the furniture refinishing sector.

The meeting will be held at EPA Region 1 Headquarters in Boston, Massachusetts from 9:00am to 4:00pm.  EPA is also providing remote access for people who are unable to attend in person.

EPA has established an online registration system.

TSCA Negotiated Rulemaking Committee Meetings — Inorganic Byproducts and CDR

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On August 18, 2017, EPA announced two upcoming meetings of the TSCA Chemical Data Reporting Negotiated Rulemaking Committee.  These meetings will be held on September 13 – 14 and October 25 – 26, 2017 in Washington, DC.  The public is invited to attend.

EPA issued a Federal Register Notice of its intent to form the committee December 16, 2016.  That notice explained that the objective of the Negotiated Rulemaking Committee will be to negotiate a proposed rule that would limit chemical data reporting requirements under section 8(a) of the amended TSCA for manufacturers of any inorganic byproduct chemical substances, when such byproduct chemical substances are subsequently recycled, reused, or reprocessed.  It also explained that the Negotiated Rulemaking Committee will attempt to reach consensus on proposed regulatory language. The negotiation process is required by section 8(a)(6) of TSCA.

EPA believes the Chemical Data Reporting (CDR) rule is the only current reporting obligation under TSCA section 8(a) that is likely to affect the manufacturers of inorganic byproduct chemical substances.

The December 16, 2016 Federal Register Notice also explained that the Agency intends to conduct the negotiated rulemaking proceedings with particular attention to ensuring full and adequate representation of those interests that may be significantly affected by a rule providing for limiting CDR requirements for inorganic byproduct chemical substances.  EPA initially identified the following groups as representing interests likely to be significantly affected by a rule:

  • Aluminum Association
  • American Chemistry Council
  • American Coal Ash Association
  • Environmental Defense Fund
  • Institute of Scrap Recycling Industries
  • IPC—Association Connecting Electronics Industries
  • North American Metals Council
  • National Mining Association
  • S. Environmental Protection Agency
  • Utility Solid Waste Activities Group

Additional information about the Committee, including information about attending Committee meetings and meeting agendas, can be found on the Committee webpage.

 

EPA Releases Working Guidance for the Nanoscale Material Reporting Rule

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On August 14, 2017, EPA released the Working Guidance for the Nanoscale Material Reporting Rule.  The Working Guidance considerably narrowed the scope of “reportable chemical substance” from the draft Guidance.  EPA considers the Guidance a “working” document because it intends to update the Guidance based on questions the Agency receives.

The Working Guidance also discusses other aspects of what makes a chemical a “reportable chemical substance” and a number of other issues.  It is divided into the following sections:

  • What Chemicals are Reportable?
  • Who is Required to Report?
  • What Information is to be Reported?
  • When is Reporting Required?
  • General Questions.

The most helpful information is found under “What Chemicals are Reportable?” and “Who is Required to Report?”

What Chemicals are Reportable.  A reportable chemical substance is one that it solid at 25º C, 1 – 100 nanometers in size in at least one dimension, and intentionally manufactured or processed to exhibit unique or novel properties because of its size.  The draft Guidance had raised a number of unanswered questions regarding what comprised unique and novel properties.

In the Working Guidance, EPA explicitly states that “size is not considered to be a unique and novel property.”  The Working Guidance differentiates between unique and novel properties and enhanced or continuously scaling properties.  The later are those which do not intrinsically change on the nanoscale and instead scale proportionately with size.  Chemicals that have different functionality at the nanoscale than the form greater than 100 nanometers would be considered substances demonstrating unique and novel properties.

Additional points about “reportable chemical substances” include discussion of discrete chemical substances and coatings.  The Working Guidance notes that some nanoscale materials are engineered to give all the particles a certain morphology or shape.  The change in shape needs to be a specifically engineered change in the shape of particles to be a discrete form of a reportable chemical substances.  EPA explains that coating a nanoscale material results in a nanoscale material with different properties; in other words, by coating a nanoscale material, one has created a reportable chemical substance.

Who is Required to Report.  According to the Working Guidance, each manufacturer and processor in the supply chain must report on the reportable chemical substance.  EPA notes that processors should document the steps they took to determine whether reporting is required.  If processors do not know about specific properties that would allow them to know if they are processing a chemical substance subject to the rule, EPA believes that it would be within the reasonably ascertainable standard to ask their suppliers.