State of Washington
68th Legislature
2023 Regular Session
BySenators Billig, Padden, Short, Shewmake, Schoesler, Lovelett, Conway, Boehnke, Salomon, Nguyen, Van De Wege, Wagoner, Dhingra, Dozier, Hasegawa, Hunt, Keiser, Randall, Torres, and Valdez
Read first time 01/13/23.Referred to Committee on Environment, Energy & Technology.
AN ACT Relating to reassessing standards for polychlorinated biphenyls in consumer products; adding new sections to chapter 70A.350 RCW; and creating a new section.
NEW SECTION.  Sec. 1. (1) The legislature finds that polychlorinated biphenyls, or PCBs, are a hazardous chemical class that have been identified as carcinogenic, a developmental toxicant, toxic to aquatic organisms, and persistent and bioaccumulative. According to the United States environmental protection agency, PCBs are probable human carcinogens and may have serious and potential effects on the immune system, reproductive system, nervous system, and endocrine system.
(2) Humans and other organisms can be exposed to PCBs in a number of ways. PCBs can be released into the environment from hazardous waste sites, illegal dumping, or disposal of PCB wastes or PCB-containing products in areas or landfills not designed to handle hazardous waste, leaks, or releases from electrical transformers containing PCBs, and wastewater discharges. Once PCBs are released, the chemicals do not readily break down in the environment and can cycle for long periods between air, water, and soil. PCBs can accumulate in leaves and above-ground parts of plants and food crops, and they are also taken up into the bodies of small organisms and fish, resulting in potential exposure for people and organisms that ingest the fish.
(3) In 1979, the United States banned the production of PCBs under the toxic substances control act. However, the United States environmental protection agency's regulations implementing the toxic substances control act for PCBs allow some inadvertent generation of PCBs to occur in excluded manufacturing processes. These manufacturing by-product PCBs have been identified in wastewater, sediments, and air in numerous locations and have been positively identified in the testing of new products.
(4) The legislature finds that the state has done much to address PCB contamination, including cleanup, permitting, stormwater management, and fish advisories. In addition, the United States environmental protection agency, Washington state, and the Spokane tribe of Indians have established PCB water quality standards to protect human health and the environment. These standards are critical for addressing release and exposure from legacy and nonlegacy PCBs. However, the standards cannot be achieved with currently available water treatment technology if the waste stream continues to include new sources of PCBs allowable under the toxic substances control act at levels measured in products such as paints, inks, and pigments. While the United States environmental protection agency has restored a human health criteria standard of seven parts per quadrillion in Washington waters, the toxic substances control act limit for PCBs in products is an annual average of 25 parts per million, with a maximum 50 parts per million adjusted total PCBs. Therefore, the legislature finds that nonlegacy PCB contamination may most effectively be managed upstream at the product and process source as opposed to downstream facilities at the end of the product life cycle. The toxic substances control act standard for inadvertent PCBs does not reflect current science on limits needed to protect human health and the environment and is overdue for revision.
(5) While previous industry analysis of toxic substances control act rule making has asserted negative impacts and infeasibility in disallowing by-product PCBs, the legislature finds that safer, feasible, and available alternatives to PCB-containing paints and printing inks now exist, as determined by the department of ecology in its June 2022 Safer Products for Washington report. Moreover, since safer and available products and processes to produce paints and printing inks do exist, the legislature finds that use of manufacturing processes resulting in products with PCB by-products is not inadvertent, but intentional, and constitutes a use of the chemical within the product.
(6) Therefore, the legislature intends to direct the department of ecology to petition the United States environmental protection agency to reassess its PCB regulations under the toxic substances control act and to establish restrictions on the use of PCBs previously considered inadvertent in consumer products under its authority provided by the pollution prevention for healthy people and Puget Sound act.
NEW SECTION.  Sec. 2. A new section is added to chapter 70A.350 RCW to read as follows:
(1) The department must petition the United States environmental protection agency to reassess its regulations on excluded manufacturing processes from prohibitions on manufacturing, processing, distribution in commerce, and use of PCBs and PCB items under 40 C.F.R. Sec. 761.3 for the purpose of eliminating or reducing the presence of PCBs in consumer products.
(2) In petitioning the United States environmental protection agency, the department must include legislative findings under this chapter and information on:
(a) Health effects of PCBs;
(b) Release and exposure of PCBs including, but not limited to, concentrations of PCBs measured in consumer products and in state waters, soils, and fish tissue;
(c) Safer alternatives for consumer products that contain PCBs, including the availability and feasibility of alternatives; and
(d) Other relevant data or findings as determined by the department.
(3) The department is not required to generate new data and may use previously compiled data and findings developed in the performance of duties under this chapter.
(4) The department may consult with the department of health and other relevant state agencies in developing the petition under this section.
(5) To the extent practicable, the department must seek completion of the petition review by January 1, 2025.
NEW SECTION.  Sec. 3. A new section is added to chapter 70A.350 RCW to read as follows:
(1) Paints and printing inks are confirmed as priority consumer products for PCB chemicals.
(2) For the products identified in subsection (1) of this section, the department is directed to:
(a) Establish a restriction or prohibition under this chapter by June 1, 2025; and
(b) Adopt rules to implement the restriction or prohibition under (a) of this subsection by December 1, 2026.
(3) The department may not administer or enforce any restriction or prohibition established under subsection (2) of this section if:
(a) A court of competent jurisdiction determines that federal regulations preempt the restriction or prohibition; or
(b) The restriction or prohibition does not align with any new regulation established by the United States environmental protection agency.
(4) If any restriction or prohibition established under subsection (2) of this section is determined by a court of competent jurisdiction to be preempted by federal regulations, the department is directed to:
(a) Establish a reporting requirement for priority chemicals or processes that generate priority chemicals under this chapter within 180 days from the determination of preemption; and
(b) Adopt rules to implement the reporting requirement under (a) of this subsection within 18 months from the date the reporting requirement is established.
(5) As used in this section, "paints and printing inks" may include, but are not limited to, building paint for indoor and outdoor use, spray paint, children's paint, road paint, and printing inks used in paper and packaging.
NEW SECTION.  Sec. 4. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.
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