Bergeson & Campbell, P.C. (B&C®) is a Washington, D.C. law firm providing chemical and chemical product stakeholders unparalleled experience, judgment, and excellence in matters relating to TSCA, and other global chemical management programs.

By Lynn L. Bergeson and Carla N. Hutton
 
On September 22, 2021, the U.S. Environmental Protection Agency (EPA) recognized 33 Safer Choice Partner of the Year award winners across 16 states and the District of Columbia for achievement in the design, manufacture, selection, and use of products with safer chemicals. The Safer Choice program helps consumers and purchasers for facilities, such as schools and office buildings, find products that perform and are safer for human health and the environment. According to EPA, the work of many of the organizations being recognized addressed climate change, including by reducing greenhouse gas emissions. Additionally, several awardees have worked to increase access to products with safer chemical ingredients in underserved communities. EPA states that in the coming year, it hopes to build on this work by expanding the Safer Choice program to make products containing safer chemicals increasingly available to underserved communities, including communities of color and low-income communities. The 2021 Partner of the Year award winners include:

  • Albertsons Companies, Safer Choice Retailer: Albertsons expanded their line of Safer Choice-certified products by adding six laundry detergent products that have SmartLabels that allow customers to scan a product quick response (QR) code and learn more about the Safer Choice certification. Albertsons also worked with cities and counties to identify opportunities to educate underserved households about safer cleaning and disinfecting products.
     
  • American Cleaning Institute (ACI), Safer Choice Supporter: ACI contributed toxicological reviews that resulted in eight chemicals being added to EPA’s Safer Chemical Ingredients List (SCIL) and was the first non-manufacturer to do so. ACI’s news media coverage featuring the Safer Choice program generated a total potential reach of 11.2 million in 2020 and highlighted that “Adding chemicals to SCIL encourages innovation and growth in safer products, increases markets for manufacturers and helps protect people and the environment.”
     
  • Apple, Safer Choice Supporter: Apple uses internal Apple Safer Cleaner Criteria based on Safer Choice criteria, among other assessment tools, to determine the safer chemical status of chemicals used in its manufacturing processes. Apple assessed 54 new cleaners, bringing the total to more than 80 safer cleaner and degreaser alternatives approved for use by more than 80,000 employees in their supply chain.
     
  • The Ashkin Group, Safer Choice Supporter: The Ashkin Group included Safer Choice in training programs for frontline cleaning workers, training more than 30,000 workers to date, the majority of whom are from underserved communities.
     
  • BASF Home Care and I&I Cleaning Solutions (BASF), Safer Choice Innovator: BASF added 13 and renewed 25 safer ingredients on CleanGredients, a database of chemical ingredients pre-approved for use in Safer Choice-certified products. This brought their total to 74 ingredients across seven functional class categories.
     
  • Bona, Safer Choice Formulator-Product Manufacturer: Achieving Safer Choice-certification is a companywide objective for Bona. Since becoming a Safer Choice partner in 2020, Bona has certified 13 products. Bona has reformulated more than 90 percent of their current cleaner line for Safer Choice certification.
     
  • Case Medical, Safer Choice Formulator-Product Manufacturer: Case Medical broadened the availability of their line of Safer Choice-certified products to additional markets. They built these formulations with ingredients from the SCIL and from CleanGredients.
     
  • Church & Dwight Co., Inc. (CHD), Safer Choice Formulator-Product Manufacturer: CHD had a new product certified by Safer Choice. CHD’s advertising of this new Safer Choice-certified product included national television, digital, and print ads, and social media, with a potential reach of 169 million. CHD partnered with Safer Choice to develop and implement an in vitro testing strategy to meet Safer Choice pH criteria for laundry detergents.
     
  • The Clorox Company, Safer Choice Formulator-Product Manufacturer: Clorox updated ten formulations and added a new product to their offering of Safer Choice- and Design for the Environment (DfE)-certified products, bringing the total to 37 Stock Keeping Units (SKU) spanning 19 retail and 18 industrial and institutional products. They also increased the percentage of Safer Choice-certified products displaying the Safer Choice label prominently on the front product label from 57 percent of products in 2019 to 70 percent of products in 2020.
     
  • Defunkify, Safer Choice Formulator-Product Manufacturer: Defunkify has 15 Safer Choice-certified products, a 67 percent increase over 2019. Defunkify centers their communications strategy on emphasizing product performance and Safer Choice certification.
     
  • Dirty Labs Inc., Safer Choice Formulator-Product Manufacturer: Dirty Labs’ first two commercial products are Safer Choice-certified, and every ingredient in these products is listed on CleanGredients. The lifecycles and sources for these ingredients are mapped on Dirty Labs’ website.
     
  • ECOS, Safer Choice Formulator-Product Manufacturer: ECOS added four new products, renewed four products, and updated 11 product formulations. In total, ECOS offers more than 150 products that are Safer Choice-certified, which represents 79 percent of all ECOS product offerings.
     
  • Grove Collaborative, Safer Choice Formulator-Product Manufacturer: Grove Collaborative expanded beyond the hand soap category to certify their entire liquid laundry and dishwasher detergent collections. Grove Collaborative made it easier for customers to learn about the Safer Choice program and find certified products on their website by creating an EPA Safer Choice Spotlight store.
     
  • Hazardous Waste Management Program, King County, Washington, Safer Choice Supporter: The program featured Safer Choice in presentations at virtual webinars, as well as in publications and educational materials available in more than a dozen languages. The program also piloted a Safer Choice retail product mapping database that lists Safer Choice-certified products and information on the store where each product is sold, with the goal of increasing access to Safer Choice-certified products.
     
  • The Home Depot, Safer Choice Retailer: In 2020, Home Depot carried 173 Safer Choice-certified products. These products are featured in a callout on Home Depot’s Eco Options website, which had more than 410,000 views in 2020.
     
  • Household & Commercial Products Association (HCPA), Safer Choice Supporter. HCPA continued its support of the Safer Choice program by bringing stakeholders together from across HCPA’s membership virtually to strengthen Safer Choice, encourage more HCPA members to get their products certified by Safer Choice, and engage in discussions with Safer Choice staff about improvements to the program.
     
  • Jelmar, LLC, Safer Choice Formulator-Product Manufacturer: Jelmar added three new products to its Safer Choice partnership. Jelmar displays the Safer Choice label to consumers on 100 percent of its Safer Choice-certified products. In addition to its product labels, Jelmar features the Safer Choice label in advertisements for television, social media, online video, podcasts, and at trade shows.
     
  • Lake Monroe Sailing Association (LMSA), Safer Choice Supporter: The City of Bloomington, Indiana, relies on the Lake Monroe watershed for drinking water, recreation, and supporting the local economy. LMSA uses Safer Choice-certified products on facility-owned boats and makes these products easily accessible at no cost to their 200 members by placing them at boat cleaning stations.
     
  • Lemi Shine, Safer Choice Formulator-Product Manufacturer: Lemi Shine added three products and updated five Safer Choice-certified formulations in 2020. Currently, 18 of their 21 products are Safer Choice-certified, and Lemi Shine prioritizes formulating with chemicals from the SCIL in over 99 percent of their materials.
     
  • LightHouse for the Blind and Visually Impaired, Safer Choice Formulator-Product Manufacturer: LightHouse is a non-profit that has programs to help blind and visually impaired employees get experience in many areas, including chemical manufacturing, chemical blending, and quality assurance and control. LightHouse had record sales for their Safer Choice-certified products in 2020, with all proceeds going directly to the blind and visually impaired community.
     
  • LSI, Innovator: LSI developed a formula for a DfE-certified, fast-acting hydrogen peroxide-based disinfectant that combats SARS-CoV-2, the virus that causes COVID-19. This base formulation is registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and certified under the DfE program.
     
  • Novozymes North America, Safer Choice Innovator: In 2020, Novozymes added six enzyme ingredients to CleanGredients. Novozymes also supported 25 requests made by formulators and brand owners for certification of formulations by the Safer Choice program.
     
  • Oregon Department of Environmental Quality (DEQ)-Toxics Use Reduction Program, Safer Choice Supporter: Oregon DEQ developed innovative projects with goals of building a community that purchases safer products and of directly supporting businesses in obtaining Safer Choice certification. In partnership with the Pollution Prevention Resource Center, Oregon DEQ’s team developed and implemented a Safer Chemical Alternatives Training Program that focused on increasing knowledge about Safer Choice-certified products.
     
  • The Procter & Gamble Company (P&G), Safer Choice Formulator-Product Manufacturer: P&G added 12 products to their Safer Choice-certified line and updated two formulations. P&G designed, formulated, and manufactured their first complete Safer Choice-certified brand portfolio that is a collection of fabric and home care products.
     
  • PurposeBuilt Brands, Safer Choice Formulator-Product Manufacturer: PurposeBuilt Brands added 12 products (with 27 SKUs) to their line of Safer Choice-certified products.
     
  • Roger McFadden and Associates, LLC, Safer Choice Supporter: McFadden and Associates designed 21 products to meet Safer Choice criteria. Based on their pro bono technical recommendations, three health care facilities replaced eight cleaning products, amounting to 84,500 pounds, with Safer Choice-certified products.
     
  • Rust-Oleum Corporation, Safer Choice Formulator-Product Manufacturer: Rust-Oleum increased their offering of Safer Choice-certified products by 19 percent to 16 products (with 42 SKUs). They also began focusing on using concentrates and refillable bottles to reduce plastic use and emissions, contributing to EPA’s goal of addressing climate change.
     
  • Sea Mar Community Health Centers, Safer Choice Supporter: Sea Mar continued to act on the top two concerns for the Hispanic/Latino community identified during an earlier stakeholder meeting: the overuse of disinfectants and the common and dangerous practice of mixing cleaning products. Sea Mar conducted 100 trainings with Spanish-speaking households on safer cleaning practices, reaching 369 people with their training.
     
  • Sensitive Home, Safer Choice Formulator-Product Manufacturer: All of Sensitive Home’s 14 dish, laundry, and surface cleaners became Safer Choice-certified in 2020. Sensitive Home designed their products for sensitive people, including those with skin sensitivities, compromised immune systems, and respiratory issues.
     
  • Seventh Generation, Safer Choice Formulator-Product Manufacturer: Seventh Generation added 16 products, bringing their total to 66 Safer Choice-certified products. Seventh Generation also promoted their Safer Choice-certified products through digital and print marketing materials, including Safer Choice promotions through major e-commerce retail partners.
     
  • University of Washington Department of Environmental and Occupational Health Sciences (UW DEOHS) Continuing Education Programs, Safer Choice Supporter: In response to a surge in calls to the Poison Control Center because of increased misuse of cleaning and disinfecting products in 2020, a team at the UW DEOHS collaborated with the Occupational Health and Safety Section of the American Public Health Association to publish a fact sheet on best practices for safer cleaning and disinfecting to prevent the spread of COVID-19. In both English and Spanish, the fact sheet highlights certified safer cleaning products, including those with the Safer Choice label and DfE-certified disinfectants and products with DfE-approved active ingredients.
     
  • Wegmans Food Markets, Safer Choice Retailer: Wegmans added nine products (with 16 different SKUs) to their line of Safer Choice-certified products. Wegmans offers more than 70 SKUs of national brand Safer Choice-certified products.
     
  • Wexford Labs, Inc., Formulator-Product Manufacturer: Wexford Labs has three DfE-certified products, after bringing on a new brand of disinfecting wipes in 2020. They also assisted their partners in obtaining DfE certifications for seven new private-label products.

 

By Lynn L. Bergeson and Carla N. Hutton
 
The U.S. Environmental Protection Agency (EPA) announced on September 24, 2021, that it is extending the submission deadline for manufacturers (including importers) of 50 chemicals to report data from certain unpublished health and safety studies. The deadline for the reporting rule was originally September 27, 2021, and EPA has extended the deadline until December 1, 2021, for 20 of the 50 chemicals and to January 25, 2022, for 30 of the 50 chemicals. The 50 chemicals include:

  • Twenty chemicals designated by EPA as high-priority substances and currently undergoing risk evaluation under the Toxic Substances Control Act (TSCA). The deadline for manufacturers to submit studies on these chemicals will be December 1, 2021. EPA states that this deadline “ensures that health and safety studies will be received in time for use in risk evaluations on these chemical substances.”
     
  • Thirty organohalogen flame retardants being evaluated for health risks by the Consumer Product Safety Commission (CPSC) under the Federal Hazardous Substances Act (FHSA). The deadline for manufacturers to submit studies on these chemicals will be January 25, 2022.

EPA will publish a notice in the Federal Register extending the deadline. A pre-publication version of the notice is available on EPA’s website. EPA has also posted a “historic” question and answer document about reporting under TSCA Section 8(d). Detailed information about the reporting rule is available in our June 29, 2021, memorandum, “Manufacturers and Importers of 20 High-Priority Chemicals and 30 Organohalogen Flame Retardants Must Submit Data to EPA.”


 

Bergeson & Campbell, P.C. (B&C®) is pleased to offer the recording, slides, and written Question and Answer (Q&A) document from our “PFAS Reporting Rules -- What Every Company Needs to Know” webinar, focusing on the U.S. Environmental Protection Agency’s (EPA) proposed reporting rules for per- and polyfluoroalkyl substances (PFAS), presented by B&C Managing Partner Lynn L. Bergeson and Director of Chemistry Richard E. Engler, Ph.D.
 
Do you wonder if the PFAS reporting rules extend to domestically-produced articles? Or if businesses that incorporate PFAS into their products are required to notify the end users? Do you know whether you need to report your Low Volume Exemption (LVE) substance? We encourage you to view the webinar and read the additional materials to learn answers to these and other questions related to EPA’s recent PFAS actions.
 
We also encourage you to consider the following issues discussed in the webinar and to submit comments to EPA regarding how these will affect your operations:

  • Identifying chemicals subject to reporting (i.e., specific PFAS and whether to include imported articles);
  • Considerations for economic analysis;
  • Submission period;
  • Potential duplicative reporting concerns;
  • Scope of “existing environmental and health information” collected;
  • Additional data elements or information collected;
  • EPA’s use and publication of non-confidential business information (CBI);
  • Availability of joint submissions; and
  • Small manufacturer considerations (i.e., regulatory and non-regulatory assistance and outreach).

Comments on EPA’s proposed PFAS rules are due on September 27, 2021.
 
The recording and slides are available online. E-mail .(JavaScript must be enabled to view this email address) to request written answers to selected questions from the Q&A session of the webinar.


 

By Lynn L. Bergeson and Carla N. Hutton
 
The U.S. Environmental Protection Agency (EPA) will hold a webinar on September 24, 2021, for stakeholders to learn how to access and use the pollution prevention (P2) information collected by the Toxics Release Inventory (TRI) Program about projects implemented by companies to eliminate or reduce the creation of chemical waste. According to EPA, community members, local government representatives, facility personnel, and others can access this information through multiple online resources and use it to further the identification and advancement of P2 opportunities. The webinar will include a live demonstration of how to find P2 data for specific facilities, chemicals, and industry sectors, as well as:

  • Details on what data facilities are required to report;
  • Examples of P2 projects implemented at manufacturing facilities; and
  • Resources for and benefits of implementing P2 projects at facilities.

The webinar is also part of a series of webinars to mark the 35th anniversary of the TRI Program. Registration is now open.


 

This week's All Things Chemical® Podcast will be of interest to readers of the TSCAblog®. A brief description of the episode written by Lynn L. Bergeson is below.
 
This week I sat down with Richard E. Engler, Ph..D., Director of Chemistry with Bergeson & Campbell, P.C. (B&C®) and The Acta Group (Acta®), to discuss the U.S. Environmental Protection Agency’s (EPA) continuing struggle to regulate certain persistent, bioaccumulative, and toxic (PBT) chemicals, especially those found in finished products, what EPA refers to as “articles.” The Toxic Substances Control Act (TSCA) has always applied to the products, or articles, that contain chemical substances of interest to EPA under TSCA. While EPA previously used that authority somewhat sparingly, the 2016 Amendments to TSCA have jump-started a new wave of regulations that expressly apply to articles. EPA is required under TSCA to regulate certain PBTs, and EPA issued a final rule earlier this year that inspired chaos in the business community, especially in the electronics sector and its complicated supply chain. Rich and I discuss these PBT rules and help explain what may well be the new normal with regard to the regulation of finished products under TSCA.


 

By Lynn L. Bergeson and Carla N. Hutton
 
On September 17, 2021, the U.S. Environmental Protection Agency (EPA) published a final rule amending the regulations applicable to phenol, isopropylated phosphate (3:1) (PIP (3:1)) promulgated under the Toxic Substances Control Act (TSCA). 86 Fed. Reg. 51823. Specifically, EPA is extending the compliance date applicable to the processing and distribution in commerce of certain PIP (3:1)-containing articles, and the PIP (3:1) used to make those articles, from March 8, 2021, to March 8, 2022. For such articles, EPA states that it is also extending the compliance date for the recordkeeping requirements applicable to manufacturers, processors, and distributors from March 8, 2021, to March 8, 2022. According to EPA, the articles covered by the amendment “include a wide range of key consumer and commercial goods such as cellular telephones, laptop computers, and other electronic and electrical devices and industrial and commercial equipment used in various sectors including transportation, life sciences, and semiconductor production.” The final rule is effective September 17, 2021. More information on the final PIP (3:1) rule and on EPA’s plan for a new rulemaking on persistent, bioaccumulative, and toxic (PBT) chemicals is available in our September 3, 2021, memorandum, “EPA Plans New Rulemaking for PBTs, Extends Compliance Dates for PIP (3:1) Rule.”


 

By Lynn L. Bergeson and Carla N. Hutton

The New York State Department of Environmental Conservation (NYS DEC) held a virtual public meeting on September 15, 2021, on its forthcoming regulations to implement the Toxic Chemicals in Children’s Products Law. New York’s Environmental Conservation Law (ECL) Article 37 Title 9 establishes an ingredient disclosure program and prohibits certain chemicals in children’s products. ECL Article 37 instructs NYS DEC to promulgate lists of chemicals of concern and high priority chemicals that must be disclosed if present in children's products by March 1, 2022. ECL Article 37 also prohibits the sale of children’s products containing benzene, asbestos, or tris(1,3-dichloro-2-propyl) phosphate effective January 1, 2023. NYS DEC has posted a list of chemicals under consideration and their practical quantification limits. The list includes the evidence that NYS DEC has identified to justify listing the chemicals. Comments may be submitted via e-mail to .(JavaScript must be enabled to view this email address) or via mail to:

Emily Dominiak
NYS DEC -- Division of Materials Management
625 Broadway
Albany, NY 12233-7252
Comments must be submitted by 5:00 p.m. (EDT) on October 15, 2021.

According to NYS DEC’s website, NYS DEC has made a recording of the September 15, 2021, meeting available for review. The website notes that NYS DEC “will hold a formal public comment period on the proposed rule at a later date, which will be published in the Environmental Notice Bulletin.”


 

By Lynn L. Bergeson and Carla N. Hutton
 
The U.S. Environmental Protection Agency (EPA) announced on September 8, 2021, the availability of the draft scope of the risk evaluation to be conducted for octamethylcyclotetra-siloxane (D4). 86 Fed. Reg. 50347. As reported in our October 7, 2020, blog item, through the American Chemistry Council’s Silicones Environmental, Health, and Safety Center, Dow Silicones Corporation, Elkem Silicones USA Corporation, Evonik Corporation, Momentive Performance Materials, Shin-Etsu Silicones of America, Inc., and Wacker Chemical Corporation requested a risk evaluation of D4 pursuant to Section 6 of the Toxic Substances Control Act (TSCA). The draft scope document includes the conditions of use, hazards, exposures, and the potentially exposed or susceptible subpopulations that EPA plans to consider in conducting the risk evaluation for this chemical substance. EPA is also opening a 45-calendar day comment period on the draft scope to allow for the public to provide additional data or information that could be useful in preparing the final scope document. Comments are due October 25, 2021.
 
EPA plans to evaluate manufacturing (including importing); processing; distribution in commerce; industrial, commercial, and consumer uses; and disposal of D4 in the risk evaluation. According to the draft scope document, D4 is manufactured (including imported) in the United States. The chemical is processed as a reactant; incorporated into a formulation, mixture, or reaction product; and incorporated into articles. The draft scope document states that the identified processing activities also include the repackaging and recycling of D4. D4 is primarily used to make other silicone chemicals and as an ingredient in consumer products regulated by the Federal Food, Drug, and Cosmetic Act (FFDCA). Commercial uses include adhesives and sealants, automotive care products, paints and coatings, and other plastic and rubber products. Additional consumer uses include adhesives and sealants, automotive care products, laundry and dishwashing products, paints and coatings, and other plastic and rubber products.
 
EPA notes that some of these conditions of use were identified in the manufacturer request as circumstances on which EPA was requested to conduct a risk evaluation. EPA identified other conditions of use from information reported to EPA through Chemical Data Reporting (CDR), published literature, and consultation with stakeholders for both uses currently in production and uses whose production may have ceased. EPA presented the proposed additions of these EPA-identified conditions of use and the basis for these proposed additions, along with the manufacturer request, for a 45-day comment period in June 2020.


 

By Lynn L. Bergeson and Carla N. Hutton
 
On August 31, 2021, the U.S. Environmental Protection Agency (EPA) released the final scope documents for the Toxic Substances Control Act (TSCA) risk evaluations of diisodecyl phthalate (DIDP) and diisononyl phthalate (DINP). 86 Fed. Reg. 48695; 86 Fed. Reg. 48693. In its August 31, 2021, press release, EPA notes that both DIDP and DINP “belong to a family of chemicals called phthalates and are commonly used as plasticizers in the production of plastic and plastic coating to increase flexibility.”
 
According to EPA, the final scope documents reflect the policy changes on risk evaluations announced in June 2021. This includes plans to consider exposure pathways that may be regulated outside of TSCA, like air and water, and potential for exposures to fenceline communities (i.e., communities near industrial facilities). EPA states that “[a]ssumptions that personal protective equipment (PPE) in occupational settings will always be properly utilized will not be used as the basis for the risk determination. Use of PPE, and other ways industry protects its workers, will be assessed during the risk evaluation and considered as potential ways to address unreasonable risks during the risk management process.” More information on the policy changes is available in our July 1, 2021, memorandum.
 
The final scope documents explain EPA’s plan for the risk evaluations, including the conditions of use, hazards, exposures, and the potentially exposed or susceptible subpopulations that EPA will consider. The documents also include a description of the reasonably available information and the best available science approaches that EPA will use; a conceptual model that outlines the potential hazards and exposures throughout the life cycle of the chemical; an analysis plan to identify the approaches and methods EPA will use to assess health and environmental risks; and a plan for peer review. More information will be available in a forthcoming memorandum that will be posted on our website.


 

WEBINAR
Thursday, September 9, 2021
11:00 a.m. – 12:00 p.m. (EDT)
Register Now

Bergeson & Campbell, P.C. (B&C®) is pleased to present a complimentary webinar focused on the U.S. Environmental Protection Agency’s (EPA) proposed per- and polyfluoroalkyl substances (PFAS) regulations on September 9, 2021, 11:00 a.m. – 12:00 p.m. (EDT). B&C Managing Partner Lynn L. Bergeson and Director of Chemistry Richard E. Engler, Ph.D., will discuss three actions recently taken by EPA:

  • Proposing a rule designed to obtain comprehensive data on more than 1,000 PFAS manufactured in the United States;
  • Withdrawing guidance that EPA believes weakened its July 2020 significant new use rule (SNUR) restricting certain long-chain PFAS; and
  • Publishing a final rule that incorporates three additional PFAS into the Toxics Release Inventory (TRI) maintained under the Emergency Planning and Community Right-to-Know Act (EPCRA).

The proposed rule intended to obtain comprehensive data on PFAS would require all manufacturers (including importers) of PFAS in any year since 2011 to report information related to chemical identity, categories of use, volumes manufactured and processed, byproducts, environmental and health effects, worker exposure, and disposal.
 
As a result of these EPA regulatory actions, companies that never expected to need to know the Toxic Substances Control Act (TSCA) are now finding themselves in EPA’s crosshairs. This webinar will explore the full scope of these potential rules, how entities can determine if they will be subject to reporting, and the specific recordkeeping requirements that have been proposed.

Register for the webinar now
 


 
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