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California Solicits Comments on Draft Green Chemistry Regulations

Beveridge & Diamond, P.C. - Client Alert, July 16, 2009

The California Department of Toxic Substances Control (“DTSC”) is seeking comment on a draft Proposal for “Safer Alternatives for Consumer Products” regulations (“Proposal”), which are required by California Assembly Bill (“AB”) 1879 (2008).  AB 1879 mandates that DTSC adopt regulations to identify and prioritize chemicals of concern in consumer products, evaluate safer alternatives to chemicals of high concern, and outline a range of appropriate regulatory responses.  The Proposal (click here for link) reveals DTSC’s current thinking on the state’s first Green Chemistry regulations.  It also presents an opportunity for industry and other stakeholders to weigh in on the development of these regulations prior to the formal rulemaking process that is expected to commence this fall.

California’s Green Chemistry regulations are expected to have broad impacts on many industries, including manufacturers, suppliers, importers, distributors and retailers of consumer products intended for sale or use in the state.  Under the current Proposal, “consumer product” includes any “product or part of the product that is used, bought, or leased by a person for any purpose.”  (While this definition is quite broad, it is taken from Senate Bill (“SB”) 509, a second piece of Green Chemistry legislation that became law the same day as AB 1879.)  Food and pesticides are excluded from the consumer product definition, as are certain dental, medical and prescription drug items and their packaging.

Proposed Process for Identifying Chemicals of Concern

The current Proposal includes process criteria for identifying chemicals of concern that would include, but is not limited to, any chemical:  (1) for which a minimum data set is not available; (2) which appear on any “list” published by any government, authoritative body, or non-governmental organization (“NGO”); (3) which have been detected in humans through biomonitoring studies, (including studies conducted by NGOs); (4) listed under Proposition 65 (without regard to whether the chemical would result in exposure); (5) that could potentially give rise to hazardous air pollutants, including greenhouse gases; or, (6) that when discarded is, or is presumed to be hazardous waste in California.[1]

Proposed Criteria for Prioritizing Chemicals of High Concern

The prioritization process in the Proposal would place chemicals on a “high” priority list according to factors such as: the volume of the chemical; potential for exposure (including anticipated releases from the product at the end of its useful life); potential effects on sensitive sub-populations; “human experience suggesting that a chemical or chemical ingredient of concern poses a potential risk to human health or safety, or the environment,” and whether there is “any evidence that suggests that there are ‘reasonable grounds for concern’ regarding the potential adverse effects of the chemical.”  In addition, chemicals lacking adequate data would automatically be classified as “high” priority under the proposal.

Proposed Alternatives Analysis Requirements

Under the Proposal, the responsibility for determining if a consumer product contains one or more high priority chemicals would be on the manufacturers, importers, suppliers, retailers or any other entity responsible for placing the consumer product in commerce in California.  Consumer products that contain one or more high priority chemicals of concern would require the submission of an alternatives analysis, including consideration of chemical substitution, alternative manufacturing or handling processes that result in reduced use of high priority chemicals of concern in a product, or alternative forms of products that do not contain chemicals of concern.  Health impacts, ecological impacts, and lifecycle impacts would need to be considered.  Where no alternatives can be identified, the proposal would require the analysis to be published within the Toxics Information Clearinghouse (mandated by SB 509) and would make the analysis subject to ongoing public comment.  The outcome of the alternatives analysis would be categorized and assigned to the appropriate regulatory response.  For additional details regarding proposed alternatives analysis provisions, see section 5 of the Draft Straw Proposal.

Proposed Regulation of Chemicals of High Concern

Following completion of the alternatives analysis, the Proposal outlines a range of regulatory responses available to DTSC, including:  (1) no further action; (2) requests for additional information; (3) required labeling (including a proposal for carbon footprint labeling); (4) restrictions on use; (5) prohibitions; (6) engineered safety measures; (7) end-of-life management requirements for manufacturers; (8) research and development programs; and/or (9) continuous improvement programs.

Potential Influence on EPA and Congress

The Proposal addresses how chemicals of concern should be identified, prioritized, assessed and regulated.  These are the same topics addressed by EPA in its Chemical Assessment and Management Program (“ChAMP”) under the Toxic Substances Control Act (“TSCA”).  EPA recently halted work under ChAMP to reconsider how best to address those topics.  In addition, those topics are key elements of anticipated legislation to overhaul TSCA, with a federal bill expected to be introduced shortly after Labor Day.

California’s implementation of AB 1879 through promulgated regulations may impact federal activity related to ChAMP and/or potential TSCA reform.  Accordingly, industry outside of California should follow the Green Chemistry rulemaking closely.

Progress and Opportunities to Comment

Drafting of the Safer Alternatives regulations is accelerating on an aggressive time table, and there is a limited window of opportunity open now to comment on the direction of these draft regulations.  Based on comments received on the draft Proposal, DTSC expects to release the draft text for regulations by mid-August.  DTSC will hold a public workshop in Sacramento on Wednesday, August 26 to discuss this draft text.  DTSC then expects to finalize the draft regulations (and begin the formal rulemaking process) on or around August 31, 2009.

For additional information or guidance regarding developments in California Green Chemistry, please contact Laura Duncan (lduncan@bdlaw.com); Ken Finney (kfinney@bdlaw.com); Mark Duvall (mduvall@bdlaw.com) or Ryan Tacorda (rtacorda@bdlaw.com).


[1] Note that under California law and regulations, many common substances may be identified as hazardous waste even if they are not considered harmful to consumers.  For example, soap and copper could both qualify as hazardous wastes under California’s aquatic toxicity criteria.

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