On May 8, 2019, the Washington state governor signed into legislation the nation’s strongest policy regulating toxic chemicals in products. Known as the Pollution Prevention for our Future Act (2019 Washing Senate Bill No. 5135, Washington Sixty-Sixth Legislature), the law directs the state’s Department of Ecology to identify and regulate priority chemicals and consumer products containing priority chemicals on a five year cycle. Manufacturers in violation of requirements, rules, or orders related to priority chemicals, priority consumer products, and associated regulatory actions are subject to civil penalties of up to $5,000 for a first offense and up to $10,000 for repeat offenses.
Preexisting Washington State Regulations Restricting Use of Toxic Chemicals
Prior to SB 5135, the state of Washington already had in effect state laws restricting the use of several substances in various consumer products, including Bisphenol A in sports bottles and other containers; lead in vehicle wheel weights; copper in boat paint; polybrominated diphenyl ethers (“PBDEs”), a class of flame retardants, in a variety of consumer products; five flame retardants (TDCPP, TCEP, decabromodiphenyl ether, HBCD; and additive TBBPA) in children’s products and residential upholstered furniture; cadmium, phthalates, and lead in children’s products; lead, mercury, hexavalent chromium, and cadmium in product packaging; perfluoroalkyl and polyfluoroalkyl (“PFAS”) chemicals in firefighting foam and certain types of food packaging, contingent upon the identification of suitable alternatives; and mercury, in several categories of consumer products. In addition, the Children’s Safe Products Act (“CSPA”) directs the Department of Ecology (“ECY”), working with the Department of Health, to use fetal and childhood exposure potential to identify high-priority chemicals of concern to children.
Other pre-existing Washington state toxic substance regulations include state hazardous waste management laws and the Model Toxics Control Act. In 2006, the ECY adopted a rule under state hazardous waste laws outlining the processes it follows for efforts to reduce and phase out the uses, releases, and exposures to persistent, bioaccumulative toxins (PBTs) and to identify and prioritize candidates for the development of chemical action plans (“CAPs”). CAP processes have been initiated or completed for a number of chemical groups, including: polychlorinated biphenyls; PFAS; and PBDEs in a variety of consumer products. Appeals of certain decisions, orders, and penalties made by the ECY and several other state agencies are within the jurisdiction of the Pollution Control Hearings Board (“PCHB”). Parties aggrieved by a PCHB decision may obtain subsequent judicial review.
Overview of SB 5135, a.k.a. the Pollution Prevention for our Future Act
Under this backdrop, the Washington state legislature passed the act creatively titled, “Preventing toxic pollution that affects public health or the environment,” which has been rebranded the Pollution Prevention for our Future Act (“the Act”). Pivotal to the Act is the identification and regulation of priority chemicals, which are defined to include PFAS, polychlorinated biphenyls (PCBs), phthalates, organohalogen flame retardants (OFRs) and other flame retardants identified under the CSPA, and phenolic compounds.
Every five years, the ECY must designate at least five priority chemicals or chemical classes. To be designed as a priority chemical by the ECY, a chemical must be: designated as a high-priority chemical for children under the CSPA; designated by the ECY as a persistent, bioaccumulative toxin (PBT); regulated in consumer products under CSPA or laws targeting polybrominated diphenyl ethers (PBDEs), product packaging, PFAS in firefighting foam, mercury, copper in boat paint, and Bisphenol A; a hazardous substance under the Model Toxics Control Act or state hazardous waste management laws; or of concern to sensitive populations and sensitive species, after considering a variety of factors. Sensitive populations and species are defined to include people and species that may be disproportionately or more severely affected by priority chemicals.
Every five years, the ECY must also identify priority consumer products that are a significant source of or use of priority chemicals. In designating a priority consumer product, the ECY must consider criteria that include: the volume of a chemical in the consumer product; the volume or number of units of a product sold in Washington; the potential for exposure to the priority chemical by sensitive populations or species; the potential for chemicals to be found in the outdoor environment; regulatory actions taken by other states or nations; whether the product has been identified as a source of a chemical as part of chemical action plan under the PBT rule or other reports or information gathered under the CSPA; and other specified state laws that restrict toxic chemicals in consumer products.
To assist with the identification of priority consumer products and making regulatory determinations, the ECY may request that manufacturers submit a notice to the ECY containing the information that is required to be reported under the CSPA or other information relevant to specified aspects of the use of a chemical in a consumer product.
Notably, the following products may not be identified as priority consumer products:
- food and beverages, tobacco products, drug or biological products regulated by the United States Food and Drug Administration;
- finished products regulated by the Federal Aviation Administration (FAA);
- motorized vehicles;
- finished products regulated or certified by the FAA or Department of Defense, as well as parts, materials, and processes when used to manufacture or maintain those regulated or certified finished products, and chemical products used to produce an agricultural commodity; and
- plastic shipping pallets manufactured prior to 2012.
Every five years, the ECY, in consultation with the DOH, must determine regulatory actions to reduce the use of priority chemicals in priority consumer products and to increase transparency. The ECY may determine that no regulatory action is currently needed, may require manufacturers to provide notice of the use of a chemical consistent with the CSPA reporting requirements, or may restrict or prohibit the manufacture, distribution, sale, or use of a priority chemical in a consumer product. To restrict or prohibit priority chemicals or members of a class of priority chemicals in priority consumer products, the ECY must determine that safer alternatives are available and feasible, and either: the restriction will reduce a significant source of or use of a priority chemical; or the restriction is necessary to protect the health of sensitive populations or species. Restrictions adopted by the ECY may include exemptions. When determining regulatory actions, the ECY may also consider other specified factors. The ECY may not require disclosure of or restrict the use of chemicals in internal components of electronic products.
Schedule for Implementing the Act
From an initial list of priority chemicals that may include PFAS chemicals, PCBs, phthalates, OFRs, other flame retardants identified under the CSPA, and phenolic compounds, the ECY must designate priority consumer products that are a significant source of or use of those chemicals by June 1, 2020. The ECY must determine regulatory actions for these priority chemicals and priority consumer products by June 1, 2022, and must adopt rules to implement those regulatory actions by June 1, 2023.
Every five years, the ECY must:
- designate five priority chemicals, starting June 1, 2024;
- designate priority consumer products for those chemicals, starting June 1, 2025;
- determine regulatory actions for those priority consumer products and chemicals, starting June 1, 2027; and
- adopt implementation rules for those regulatory actions, starting June 1, 2028.
When identifying priority chemicals, priority consumer products, or determining regulatory actions, the ECY must submit a report to the appropriate committees of the Legislature, and the identification determinations by the ECY do not take effect until the adjournment of the regular legislative session immediately following the ECY action.
Civil Penalties
Manufacturers in violation of requirements, rules, or orders related to priority chemicals, priority consumer products, and associated regulatory actions are subject to civil penalties of up to $5,000 for a first offense and up to $10,000 for repeat offenses. Penalties and orders are appealable to the Pollution Control Hearings Board.
Public Notification of Priority Chemicals and Priority Consumer Products Determinations
When identifying priority chemicals and priority consumer products, the ECY must: (1) notify the public, including via the Washington State Register, of the selection and the sources of information that it relied upon and the basis for the selection; and (2) publish a draft schedule for making determinations. The ECY must provide an opportunity for review and comment on the regulatory determinations and must also create a stakeholder advisory process by June 1, 2020, to provide expertise, input, and review of the ECY identification of priority chemicals, priority consumer products, and regulatory determinations.
The ECY must cite, publish, and categorize the sources of information that it relied upon, including peer-reviewed science, in the course of taking significant agency action, in the same manner as is required for significant agency action taken by the ECY’s Water Quality and Shorelands and Environmental Assistance programs. Each adopted rule to restrict a chemical or require disclosure of a chemical is a significant agency action, and also a significant legislative rule for purposes of the Administrative Procedure Act.
Requests for Confidentiality
A manufacturer that submits information or records to the ECY may request that the information or records be made available only for ECY’s confidential use. The ECY must grant this request if it is made in accord with the policies and procedures established under the ECY’s existing administrative process and standards for evaluating confidential information submitted to the ECY. The ECY must also keep confidential and may not publicly disclose any information furnished to the ECY by a federal agency on the condition that it be afforded the confidentiality protections available under federal law.
In their regulatory and environmental practice, Elizabeth McNulty and Christine Reynolds defend clients against California Proposition 65, asbestos, toxic tort, and other environmental exposure claims.