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California Revises Informal Draft Safer Consumer Products Regulations

Final Rulemaking Proposal Expected in June 2012
Beveridge & Diamond, P.C., June 5, 2012

On May 18, 2012, the California Department of Toxic Substances Control (“DTSC”) released Revised Informal Draft Safer Consumer Product Regulations ("Revised Informal Draft") as part of its long running effort to implement the state’s landmark 2008 Green Chemistry legislation.  Manufacturers of consumer products sold in California will be significantly impacted if the Revised Informal Draft language is adopted in the final regulations.  Although DTSC has solicited stakeholder feedback on the Revised Informal Draft, it does not plan to respond in writing to any comments received.  DTSC is expected to initiate the formal rulemaking process, including notice and a public comment period, later this month with the release the final proposed Safer Consumer Products (“SCP”) Regulations.  DTSC also plans to hold a public workshop to solicit stakeholder feedback on the final SCP regulatory proposal.

Background

With the passage of California’s Green Chemistry legislation (A.B. 1879 and S.B. 509) in 2008, California sought to reduce or eliminate adverse public health and environmental impacts that may result from the production, use, or end-of-life management of consumer products containing hazardous chemicals.  Under A.B. 1879, DTSC was required to adopt regulations by January 1, 2011 to implement the Safer Consumer Products provisions.  In September 2010, DTSC issued proposed regulations (the “September 2010 Proposed Regulations”) that outlined a process for identifying and prioritizing chemicals of concern and requirements for performing alternatives assessments.  However, in response to extensive criticism of the Proposed Regulations during the public comment period, DTSC withdrew the proposed regulations on August 12, 2011.  Two months later, DTSC tested the water with an initial set of informal draft regulations (the “October 2011 Informal Draft”), providing a signal to the public of the new direction that DTSC was taking with the SCP rulemaking.  For an overview of the October 2011 Informal Draft, see Beveridge & Diamond’s November 16, 2011 Client Alert (available at http://www.bdlaw.com/news-1257.html).

The Revised Draft Regulations

The Revised Informal Draft released last month follows the same basic structure as the October 2011 Informal Draft and contains many of the same elements.  The current version, however, differs from the October 2011 Informal Draft in several important ways:

  • The Definitions section (§69501.1) has been modified.  Among the more noteworthy changes is that the Revised Informal Draft defines the term “Hazard Trait” by reference to the Office of Environmental Health Hazard Assessment (“OEHHA”) Hazard Trait regulations, which were passed pursuant to S.B. 509 on January 19, 2012.
  • The Revised Informal Draft allows a manufacturer or importer to avoid compliance by submitting written notice to DTSC that the product is no longer placed in the stream of commerce in California (§69501.2(b)(1)).
  • Under the terms of the October 2011 Informal Draft, approximately 3,000 chemicals would have been placed on the SCP Chemicals of Concern list based on references to various governmental and scientific authoritative body sources.  The Revised Informal Draft would add more sources from which yet additional chemicals would be added to the SCP Chemicals of Concern list (§69502.3).
  • Among other changes to the trade secret provisions of the Alternatives Analysis Reports (§69505.5), DTSC would now have responsible entities submit a redacted version of Alternatives Analysis Report to DTSC along with the unredacted version.
  • DTSC has significantly revised Article 6 covering Regulatory Responses, (particularly the section that covers Regulatory Response Selection Principles, §69506).  For example, the Revised Draft Regulations include a requirement that DTSC give preference to selecting the Regulatory Response that provides the “greatest level of inherent protection.”
  • The Revised Informal Draft contains significant revisions to the Certified Alternatives Analysis Assessor section (§69508).

Next Steps

Although DTSC did not distribute the Revised Informal Draft widely, this version appears to be a preview of the final Proposed Regulation for which DTSC will publish a notice and open for public comment later this month (June 2012).  At that time, stakeholders and members of the public will have a formal opportunity to raise issues of concern and challenges to the Proposed Rule by submitting comments pursuant to the California Administrative Procedures Act, which DTSC is required to address prior to adopting the Final Regulation.

For additional information on California’s Green Chemistry Initiative, please contact Laura Duncan at lduncan@bdlaw.com or Ken Finney at kfinney@bdlaw.com.  This alert was prepared with the assistance of Zachary Norris.

For a PDF of this article, please click here.

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