Chemical Legislation in Washington State
Restrictions on PBDEs and Deca-BDE
In 2007 the state of Washington enacted a law restricting the use of Polybrominated Diphenyl Ethers (PBDEs). The rules prohibit the manufacture, distribution, and sale of most products containing PBDEs starting January 1, 2008 (exceptions include medical devices and transportation equipment). Deca-BDE is prohibited in mattresses starting January 1, 2008, and in televisions, computers, and residential upholstered furniture starting January 1, 2011.
WASH. REV. CODE § 70.76
PBT Initiative
This rule authorizes the Washington Department of Ecology to place chemicals that are persistent, bioaccumulative, and toxic (PBTs) on a list, which may be used for the following purposes: 1. Chemical action plans. To select chemicals for chemical action plan development. 2. Ambient monitoring. To help guide decisions on the design and implementation of ecology programs for characterizing chemical concentrations in the ambient environment. 3. Biomonitoring. To encourage and inform the department of health regarding their efforts to monitor chemicals in human tissue. 4. Public awareness. To promote greater public awareness on the problems associated with PBT chemicals, the uses and sources of individual PBTs and steps that individuals and organizations can take to reduce PBT uses, releases and exposure. 5. Voluntary measures. To help identify opportunities for government agencies, businesses and individuals to implement voluntary measures for reducing and phasing out PBT uses and releases.
The rule sets forth a list of PBTs, as well as the criteria to be used by the Department of Ecology in adding or removing chemicals from the list. The rule also identifies cadmium and lead as metals of concern as an interim category pending completion of EPA's inorganic metals assessment framework process. Finally, the rule describes the process by which chemical action plans will be developed.
Pollution Prevention Plans
Washington law requires certain hazardous waste generators and hazardous substance users to prepare plans for voluntarily reducing hazardous substance use and hazardous waste generation, and to update those plans every five years.
WASH. REV. CODE § 70.95C
WASH. ADMIN. CODE § 173-307
Interstate Chemicals Clearinghouse (IC 2) Guide
Washington partnered with eight other states to author a guide on safer alternatives. Designed to increase state efforts to research, test and promote safer chemical alternatives, this guide identifies high priority hazardous substances by considering criteria including human carcinogenicity, endocrine disruption, and substances of high concern for children. It provides guidance on conducting alternatives assessments. It recommends development of pollution prevention plans that include information on these high priority hazardous substances, products containing them, and alternatives assessment outcomes.
Toxics Reduction Advisory Committee
Toxics Reduction Advisory Committee Findings and Recommendations
Beyond Waste Plan
Washington law requires the Department of Ecology to develop and regularly update statewide hazardous waste and solid waste plans. In 2004, the Department’s Hazardous Waste & Toxics Reduction Program and the Waste 2 Resources Program jointly issued the Washington State Hazardous Waste Management Plan and Solid Waste Management Plan, also known as the “Beyond Waste Plan.” The Plan sets out a 30-year process (from 2005 to 2035) for eliminating wastes and toxics through five initiatives: 1. Moving Toward Beyond Waste with Industries 2. Reducing Small Volume Hazardous Materials and Wastes 3. Increasing Recycling of Organic Materials 4. Making Green Building Practices Mainstream 5. Measuring Progress Toward Beyond Waste
The Department of Ecology issued an Updated Plan in 2009, as well as the Third Annual Progress Report in 2010.
The Moving Toward Beyond Waste with Industries initiative focuses on reducing the use of toxic chemicals, promoting safer alternatives, and cutting down on generated waste through a systematic approach (as opposed to a chemical-by-chemical approach). This initiative has yielded several recommendations, including the following suggestions related to chemical use:
Eliminate or minimize groups of the most toxic chemicals as part of Ecology's Reducing Toxic Threats work. Consider regulatory/legislative options, including reforming TSCA, participating in an interstate chemicals clearinghouse, developing a state green chemistry law.
Encourage safer alternatives to minimize toxic threats. Drive public demand by providing the public with information on choosing the safest product to meet their needs. This could include product composition and appropriate third-party certification systems.
WASH. REV. CODE § 70.105.200
WASH. REV. CODE § 70.95.260
Green Chemistry Alternatives Assessment Guidance
The August, 2012 deadline for the largest companies to report on the presence of listed chemicals in children's products under Washington State's "Green Chemistry" initiative is edging closer. In the meantime, the state is leading the development of Alternatives Assessment Guidance, a framework to identify "safer" alternatives to the 66 substances listed under the Washington law. Washington is the first state to offer guidance on conducting alternatives assessments (AA). Notably, Washington does not have the authority to require companies subject to reporting under its green chemistry initiative to submit an AA. However, its involvement in an Interstate Chemicals Clearinghouse that includes seven other states makes the guidance especially noteworthy, since some state green chemistry laws include a requirement that reporting companies must submit AA reports.
The Guidance was developed through the State's designated Technical Alternatives Assessment Guidance Team (TAAG), which includes representatives from the seven states who are members of the Interstate Chemicals Clearinghouse. The Guidance is based on the Environmental Protection Agency's (EPA) Design for the Environment (DfE) principles. The Guidance will include twelve modules:
1. Initial evaluation
2. Identification of alternatives
3. Pre-screening evaluation
4. Hazard evaluation
5. Exposure considerations
6. Performance
7. Commercially availability and cost effectiveness
8. Stakeholder Involvement
9. Social, worker and environmental justice and other related concerns
10. Material flow assessment
11. Life cycle considerations/avoiding shifting risks
12. Decision making methodology
The proposed modules were agreed by members of the TAAG and are believed to cover all aspects of existing assessments. It also includes an added module on environmental justice. Not all modules will apply to every assessment, however. An outline of each module will be posted for stakeholder review and comment. The modules currently available for review include:
- Updated Component Modules
- Initial Evaluation
- Identification of Alternatives
- Hazard Module
- Exposure Module
Green Screen is a preferred tool, but is not the exclusive approach to AAs in Washington. Green Screen is based on the DfE criteria and evaluates 18 hazard endpoints, ranking chemicals from least to most hazardous. The complexity of the Green Screen process lead the Washington Department of Ecology to offer a Quick Chemical Assessment Tool (QCAT). The QCAT can be used for simple AAs, but is not intended to replace Green Screen or DfE methodology.
Washington State has no legislative authority to require Alternatives Assessments so will not approve or disapprove AAs done by businesses. California has the authority to require AAs, and as a member of the Clearinghouse may decide to use the Guidance. Other states, such as Maine, are not members of the Clearing House but do have authority to require submission of an alternatives assessment. While Maine has already required reporting for the two listed chemical families (nonylphenol/nonylphenol ethoxolates and bisphenol a (BPA)), Maine's legislation references use of Green Screen as a tool for the state to conduct AAs. There is, however, no specific process in place for reporting companies to submit AAs in Maine.
The development of Washington's Alternatives Assessment Guidance is ongoing, and there is still an opportunity for comment. The TAAG would like to complete the work by the end of 2012, but Washington State notes that it is a complex project. The need to balance functionality, overall product safety and cost, and to evaluate tradeoffs, especially since in many applications there is likely no consumer exposure to the priority chemical, adds to the practical challenge.
As noted above, the largest companies will be subject to reporting to Washington "intentionally added" priority chemicals in any amount, as well as the presence of unintentional contaminants in excess of 100 ppm. While they will not have to submit an AA as part of their reports, the AA guidance, including the reliance on Green Screen and DfE, may be relevant to requirement for an alternatives assessment in the future in other states. Additional information can be found at http://www.ecy.wa.gov/programs/hwtr/chemalternatives/altAssessment.html.