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California Green Chemistry: Public Comment Period for DTSC’s Proposed Safer Consumer Products Regulations Extended Until October 11, 2012

Beveridge & Diamond, P.C., August 23, 2012

On July 27, 2012, the California Department of Toxic Substances (“DTSC”) released its proposed Safe Consumer Product Regulations (“Proposed Rule”) for notice and comment. (Click here for full text of Proposed Rule.) The Proposed Rule represents the culmination of a multi-year effort to develop regulations to implement California’s 2008 Green Chemistry legislation.  The Proposed Rule includes changes from previous pre-proposal drafts which are intended to address public concerns regarding protections for confidential business information, clarity of prioritization of chemicals of concern, the perceived unworkability of timelines for preparation of alternatives analyses, and concerns about the de minimis threshold level.  With the issuance of the Proposed Rule, DTSC opened a 45-day notice and comment period. 

Update
On August 20th, DTSC announced that due to the length and complexity of this rulemaking, it would extend the public comment period from the original closing date of September 11  to 5 p.m. on October 11, 2012.  The original date of the public hearing on the proposed rule, September 10, 2012, remains unchanged.  The hearing will be held at the Cal/EPA Headquarters Building in Sacramento.

Background

California has been working to develop a program 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 since 2008, when it passed its Green Chemistry legislation (A.B. 1879 and S.B. 509).  Under A.B. 1879, DTSC was required to adopt regulations by January 1, 2011 to implement the Safer Consumer Products provisions.  However, due in part on public feedback on prior draft efforts, the draft regulations have gone through a series of revisions that have delayed finalization beyond the statutory due date.  In September 2010, DTSC issued a proposed rule (the “September 2010 Proposed Regulations”) that outlined a process for identifying and prioritizing chemicals of concern and requirements for performing alternatives assessments.  DTSC withdrew the proposed regulations in August 2011 in response to strong public criticism.  Two months later, DTSC tested the water with an initial set of informal draft regulations (the “October 2011 Informal Draft”).  This initial draft was a “pre-proposal,” intended to gather information and gauge public response.  Building on the pre-proposal draft, DTSC issued a “Revised Informal Draft” on May 18, 2012.  For an overview of these drafts, see Beveridge & Diamond’s November 16, 2011 Client Alert and Beveridge & Diamond’s June 5, 2012 Client Alert (available at http://www.bdlaw.com/news-1257.html and http://www.bdlaw.com/news-1373.html).

The Revised Draft Regulations

The Proposed Rule differs from the October 2011 Informal Draft in several important ways:

  • Chemical Product Prioritization
    • The listed Chemicals of Concern (“COCs”) will include approximately 1,200 chemicals, fewer than half the number of chemical proposed previously.
    • The first list of Priority Products will contain no more than 5 product-chemical combinations.
    • Before January of 2016, DTSC will only list priority products containing one or more COCs that exhibit one or more hazard traits, and that are listed on one of the exposure indicator lists identified in the regulations for water quality, air quality or biomonitoring.
    • By January 2013, DTSC will issue a Priority Product Work Plan, which will identify product categories to be evaluated to identify products that will be added to the Priority Products List during the next three years.
    • In addition to allowing petitions for addition of chemicals and products to the COC and Priority Products lists, the petition process now also allows petitions for removal of chemicals from the COC list, removal of products from the Priority Products list, and requests to establish or revise an alternative analysis threshold.
    • DTSC will now consider a COC’s or Priority Product’s ability to contribute to or cause adverse impacts, rather than its potential adverse impacts.
    • There will no longer be a mandate for how frequently DTSC must review and revise the COC list.
  • Alternative Analyses
    • The regulations no longer specify a default concentration-based trigger that determines whether a manufacturer can qualify for an exemption from the Alternative Analysis requirement.  Instead, DTSC will specify a threshold for each COC in a Priority Product.  In setting this threshold, DTSC must consider the ease or difficulty of removing the COC from a product if it is a “contaminant,” the detection limit for the COC, and public health and environmental considerations.
    • The regulations no longer distinguish between “assembled” and “formulated” products for Alternative Analysis purposes.
    • The Alternative Analysis process now includes measures meant to give manufacturers greater flexibility and more autonomy, in part to provide greater protection for trade secrets.  For example, manufacturers now have the option to do part of their Alternative Analysis independently, so as to protect trade secrets.  Conflict of interest standards for accreditation bodies have also been relaxed, and economic impact analysis requirements have been revised to reduce the scope of externalized cost assessments.
  • Regulatory Responses
    • The regulations now provide additional guidance regarding the circumstances under which specified regulatory responses, including use restrictions, sale prohibitions, and administrative controls, will be required.
    • Posting of product information at the point of sale is now optional.
    • Inventory recalls in the event of a sales ban are no longer required.
  • Other Changes
    • The “bulk chemicals” exclusion has been eliminated.
    • The definition of “technically and economically feasible alternative” has been revised to: (i) remove consideration of externalized costs; (ii) take into consideration consumer acceptance after a phase-in period; and (iii) ensure that the manufacturer’s operating margin is not significantly reduced.
    • The regulations now require consideration of a chemical’s ability to degrade, form reaction products, or metabolize into another chemical.

Next Steps

As noted above, a period of notice and comment on the proposed regulations will be in effect until October 11, 2012.  A public hearing on the Proposed Rule will be held on September 10, 2012 at the Cal/EPA Headquarters Building in Sacramento.

For additional information on California’s Green Chemistry Initiative, please contact Laura Duncan at (415) 262-4003 or email lduncan@bdlaw.com.

This alert was prepared with the assistance of Beveridge & Diamond associate, Kari Twaite.