DTSC Seeks Stakeholder Input on New Green Chemistry Proposal
On October 1, 2009, the California Department of Toxic Substances Control (“DTSC”) released its second draft regulatory proposal implementing one of the California Green Chemistry Initiative laws, AB 1879. On October 21, 2009, DTSC will hold a public workshop in Sacramento, California to explain the proposal, which establishes numerous complex and resource-intensive regulatory burdens, and to accept stakeholder comments to the proposal. DTSC will be accepting comments on the proposal through November 4, 2009. The view the regulatory proposal, please click here.
DTSC’s new proposal identifies 16 specific chemicals of concern (“COCs”) which include lead, arsenic, bisphenol A, PFOS and PFOA. The proposal also sets forth a “list of lists” -- 29 chemical lists from various jurisdictions -- by which thousands of other chemicals are indirectly identified as COCs. If consumer products are, or contain, any of these chemicals, they are deemed within the scope of the regulation. In addition, the proposal identifies nine product categories including products intended for use by children, products to be applied to the body, cleaning products and clothing/textiles. Manufacturers of these products must collect specified data about the chemicals contained in them, and if any chemical exhibits any one of ten specified hazard traits (including acute toxicity, carcinogenicity, reproductive toxicity, aquatic toxicity and adverse eye effects), that chemical also shall be deemed a COC, thereby funneling those affected consumer products into the regulatory process.
The data collection requirement is not limited to consumer products falling into one of the nine categories, however. Manufacturers of all consumer products used, bought or leased in California will have to evaluate the chemicals contained in them against the same ten hazard traits or be prohibited from making those products available in California. Significantly, the proposal establishes these data requirements for “new” chemicals and for “existing” chemicals in “new” uses, before consumer products containing such chemicals are made available in California. The proposal fails to identify any “de minimis” type exemption that would keep consumer products with trace levels of chemicals outside the scope of the regulation.
Under the priority criteria set forth in the proposal, virtually all COCs in consumer products will be swept into the safer alternatives analysis component of the regulation. Thus, although AB 1879 requires prioritization of COCs presumably to impose an orderly process for undertaking safer alternatives assessments, under the proposal the priority criteria appear relevant only for determining the appropriate regulatory response action for a particular consumer product. The safer alternatives assessment component is complex and resource-intensive, and must be repeated within two years if no safer alternative is identified. Results of the assessment must be posted publicly.
The outcome of the safer alternatives assessment defines the regulatory response action to be taken for a particular consumer product. Significantly, the proposal establishes criteria for complete phase-outs of COCs in consumer products over a period of two to twenty years, depending on the priority of the COC and the availability of safer alternatives.
Apparently taking to heart comments from NGOs at various public meetings earlier this year, the proposal also requires material safety data sheet-type documentation for consumer products containing prioritized COCs. Finally, the proposal provides for a variance process by which DTSC, under certain circumstances and after making specified findings, may exempt entities from compliance on a case-by-case basis.
Like DTSC’s first proposal, this one is not a formal draft regulation submitted to the public for comment under the Administrative Procedures Act but instead represents a detailed concept piece that still may be reshaped by public comment. DTSC particularly is interested in comments relating to “de minimis” exemptions and to phasing in of the regulatory requirements over time. Interested entities should be mindful of this opportunity to provide input on these and other implementation issues.
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