Safer Products for Washington. In 2019, legislation was enacted that established an administrative process for the regulation, by the Department of Ecology (Ecology), of priority chemicals in priority consumer products. Under this process, certain chemicals were defined as priority chemicals, including perfluoroalkyl and polyfluoroalkyl (PFAS) chemicals, polychlorinated biphenyls (PCBs), phthalates, organohalogen flame retardants and other flame retardants identified under the Children's Safe Products Act, and phenolic compounds. Ecology is authorized to designate additional chemicals as priority chemicals every five years, beginning June 1, 2024, if the chemicals meet qualifying criteria, consistent with a schedule established in the 2019 law.
Under the schedule for Ecology's regulatory activities to implement Safer Products for Washington, Ecology must:
Ecology is required to make regulatory determinations for the initial round of statutorily designated priority chemicals and their associated priority consumer products by June 1, 2022, and must adopt rules to implement those regulatory determinations by June 1, 2023. As of November 2021, Ecology has issued for public comment a draft report on regulatory determinations in which the following 11 combinations of priority chemicals in priority consumer products are proposed for regulatory determinations:
Ecology must submit a report to the appropriate committees of the Legislature when identifying priority chemicals, identifying priority consumer products, or determining regulatory actions. Identification of priority chemicals, identification of priority consumer products, and regulatory determinations by Ecology do not take effect until the adjournment of the regular legislative session immediately following the Ecology action. Ecology may begin to evaluate priority consumer products before the designation of priority chemicals take effect, may consider regulatory determinations before the designation of priority products take effect, and may initiate rulemaking before regulatory determinations take effect.
When identifying priority chemicals and priority consumer products, Ecology must notify the public, including via the Washington State Register, of the selection and publish a draft schedule for making determinations.
Regulation of Perfluoroalkyl and Polyfluoroalkyl Chemicals in Firefighting Personal Protective Equipment. PFAS chemicals are characterized by their resistance to oil, stains, grease, and water, as well as their durability, heat resistance, and anti-corrosive properties. Since 2018, state law has required manufacturers, importers, distributors, and other persons selling firefighting personal protective equipment (PPE) to provide written notice at the time of sale to purchasers of firefighting PPE that it contains PFAS chemicals, and the reasons that the PFAS chemicals are added to the firefighting PPE. The firefighting PPE subject to these disclosure requirements is clothing designed or intended to be worn by firefighting personnel, including jackets, pants, shoes, gloves, helmets, and respiratory equipment.
Persistent, Bioaccumulative Toxins. In 2006, Ecology 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). PBTs are substances with toxic or harmful effects on people or animals that have a lengthy decomposition time in the environment and accumulate up the food chain in the bodies of organisms, including people. Ecology uses the PBT list to identify and prioritize candidates for the development of chemical action plans (CAPs). When developing a CAP, Ecology works with an external advisory committee to evaluate the chemical's uses, releases, impacts, and management. The CAP process concludes with the issuance of a report with recommendations for how to reduce or manage certain uses of the PBT and encourage safer alternatives to the PBT. Ecology completed a CAP for PFAS chemicals in November 2021, in which it identified a number of products as sources of or uses of PFAS chemicals, including:
Firefighting PPE, including jackets, pants, shoes, gloves, helmets, and respiratory equipment, is considered a priority consumer product for PFAS chemicals for purposes of the Safer Products for Washington regulatory process.
Ecology may consider any product identified as a source or use of PFAS in its PFAS CAP to be a priority consumer product for purposes of the Safer Products for Washington regulatory process. Ecology may determine regulatory actions and adopt rules to implement those regulatory determinations, without taking regulatory steps under Safer Products for Washington to designate those products as priority consumer products.
Ecology must determine an initial set of regulatory actions for PFAS in firefighting PPE and PFAS in CAP-identified products by June 1, 2024, and must adopt rules to implement these determinations by December 1, 2025.
PRO: Ecology is strongly supportive of the changes that increase flexibility and responsiveness without sacrificing transparency and stakeholder engagement. Communities and businesses can continue to participate in a robust review process.
There is urgency to act on these perfluoralkyl and polyfluoroalkyl (PFAS) products, including the firefighter gear and other products. These harmful chemicals have been in breast milk samples as part of a study conducted with University of Washington, and cleanup of the chemicals is extremely challenging.
Firefighters are exposed to dangerous PFAS chemicals from a number of sources. Gear designed to keep us safe is actually poisoning us. The notification law was a great step forward. We would much prefer getting wet over getting exposed to these harmful chemicals.
CON: We are concerned about changes to the cycle process. Ecology is currently in the early stages of implementing the law. The first round should be completed and impacts fully understood before making changes to the underlying statute.
OTHER: We respectfully disagree that the changes to the five year cycle add efficiency, rather, they add uncertainty. Under the current process, businesses know when the five year process starts and ends, allowing them to engage on these issues.
Implementation of the law has been successful and the Department of Health has been engaged with communities to learn about product use and to communicate chemical harm. Changes in the bill would speed up action on priority products, allowing us to move quicker when new, safe alternatives are available.
At the law's original passage, everyone agreed a five year process was an appropriate process. We were not engaged in conversations to modify the underlying statute. This language is a lot more loose than what is being portrayed here. Ecology could start a new process every, six months, we don't know.
PRO: The bill would make firefighter bunker gear a priority product to study impacts of PFAS. There are many studies that prove these chemicals cause cancer and other negative health effects. A peer reviewed study found PFAS in breast milk samples of hundred percent of participants. There is a similar bill being worked on to reduce PFAS from cosmetics. The only solution for addressing PFAS is prevention.
OTHER: We don't have concerns with the PFAS product designations, but are concerned about the shift to the at least every five year cycle, which opens up the possibility of multiple processes occurring at one time, increasing costs for the state and businesses. It is premature to be making these changes, since the first cycle has not completed.