DTSC Delays Adoption of its Green Chemistry Regulations for Safer Consumer Product Alternatives

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Green Chemistry Regulations:

After nearly two years of multi-stakeholder collaborative efforts, the California Department of Toxic Substances Control (DTSC) failed to timely adopt its Safer Consumer Product Alternatives Regulations (SCPA Regulations), a key component of California’s Green Chemistry Initiative.  The regulations would have represented a new paradigm in chemicals and products regulation, providing a strong incentive for manufacturers to market products that are “benign by design” through the use of “safer” chemicals and other techniques.  The enabling legislation, AB 1879, required DTSC to complete the rulemaking by January 1, 2011, but that did not happen.  The Department’s parent agency, the California Environmental Protection Agency (Cal-EPA), decided to have DTSC delay adoption in the face of substantial criticism of last-minute changes the Department proposed in November.   No deadline for completing the rulemaking has been announced publicly.

After receiving comments on its first regulatory proposal, released in September, DTSC made substantial changes in November and released them for a 15-day comment period extending over the Thanksgiving holiday.  The changes largely streamlined and clarified the requirements and removed potential impediments to innovation.  However, critics accused DTSC of employing “bait-and-switch” tactics, caving to industry pressure, and violating the California Administrative Procedures Act.   In the face of such criticism, Cal-EPA’s Secretary for Environmental Proection, Linda S. Adams, decided — in consultation with key legislators and the Governor’s Office — to violate the statutory deadline.   She announced her decision in a December 23, 2010 letter to Assembly Member Mike Feuer, the primary author of AB 1879.  The letter states that DTSC will reconvene its Green Ribbon Science Panel — a multidisciplinary advisory body — and revisit the issues raised in the last round of comments. 

The two most controversial changes concern (1) a five-year limitation on the categories of products subject to regulation and (2) the removal of a provision that would have affected manufacturers’ ability to redesign products.  Readers will recall that both the September and November proposals set out a three-step process – (1) identification of chemicals of concern and the priority products containing them, (2) assessment of alternatives to determine whether a viable, safer alternative is available, and (3) imposition of a regulatory response to protect health and the environment from the alternative selected.  In recognition of the challenges of implementing an entirely new regulatory scheme, the Department’s November proposal would have limited (until January 1, 2016) the categories of products from which priority products could be identified.  Only children’s products, personal care products, and household cleaning products would be eligible.   To avoid stifling innovation, the November proposal also would have removed the so-called “Tier I” notification, a streamlined alternatives assessment for a product voluntarily redesigned or reformulated to reduce or remove chemicals of concern prior to the product being identified as a priority product.  Avoidance of “regrettable substitutions” was the goal of the Tier I notification, but the potential cost to innovation convinced DTSC to remove the requirement.

These eleventh-hour developments create considerable uncertainty for the regulated community and others, which have been struggling to understand the full import of the regulations and prepare for their implementation.  The impending debate over November’s changes is certain to be contentious.  Although the changes seem meritorious, they were proposed in a manner that appears to have eroded trust and damaged the spirit of cooperation.  Whether the various stakeholders can reach consensus on the most controversial issues remains to be seen.   

 

Philip Moffat Will Participate on ABA Quick Teleconference on California's Green Chemistry Regulations

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California Green Chemistry Regulations:

Verdant is pleased to announce that Philip Moffat will participate on a “quick teleconference” program sponsored by the American Bar Association (ABA) Section of Environment, Energy, and Resources entitled “California Dreaming or Reality?  California’s New Paradigm in Chemicals and Products Management Could be Coming to a Store Near You.”  The November 15, 2010, teleconference will discuss the regulations recently proposed by the California Department of Toxic Substances Control (DTSC) to implement AB 1879, a new California Green Chemistry Initiative law designed to “accelerate the quest for safer products” in the state.  In addition to discussing the law’s requirements and its implementation, the teleconference will provide both industry and public health perspectives.

Other speakers include:

  • Ann Grimaldi, McKenna Long & Aldridge LLP, San Francisco, CA
  • Doug Fratz, Vice President, Scientific & Technical Affairs, Consumer Specialty Products Association, Washington, DC
  • Dr. Joseph Guth, UC Berkeley Center for Green Chemistry; and the Science and Environmental Health Network, Berkeley, CA
  • Maziar Movassaghi, Acting Director, DTSC, Sacramento, CA

There are two ways to participate in this program, either attending a host site location or individual dial-in.  Participation at a host site location is free of charge for ABA members, and $110 for non-members.  Registration with the host site contact is required, however:

  • Austin, TX
    Brown McCarroll, L.L.P., 111 Congress Ave., Ste. 1400
    RSVP: Keith Hopson, (512) 479-9735 or khopson@brownmccarroll.com
  • Bloomfield Hills, MI
    Butzel Long, Stoneridge West, 41000 Woodward Ave
    RSVP: Beth S. Gotthelf, (248) 258-1303 or gotthelf@butzel.com
  • San Francisco, CA
    McKenna Long & Aldridge LLP, 101 California St., # 41
    RSVP: Cynthia Kelly, (415) 267-4051 or ckelly@mckennalong.com
  • Washington, DC
    McKenna Long & Aldridge LLP, 1900 K Street, NW
    RSVP: Michael Boucher, (202) 496-7729, mboucher@mckennalong.com or Debbie Leitner, (202) 496-7372, dleitner@mckennalong.com

Additional information about the teleconference is available here.  And a copy of the presentation is available here:  Moffat_CAGreenChem

California DTSC Requests Comment on Proposed Green Chemistry Regulations for Safer Consumer Product Alternatives

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Green Chemistry Regulations:

After nearly two years of public meetings, informal comment periods and other multi-stakeholder collaborative efforts, the California Department of Toxic Substances Control (DTSC) released on September 15, 2010 its proposed Safer Consumer Product Alternatives regulations, a key component of California’s Green Chemistry Initiative.  The proposed regulations would require DTSC to create a list of chemicals identified as posing the greatest threats to human health or the environment, the so-called “Priority Chemicals.”  Using a number of factors such as volume in commerce and extent of public exposure, DTSC would then prioritize products containing those chemicals.  Entities responsible for commercial introduction of the highest priority products, the so-called “Priority Products,” would be required to perform an alternatives assessment to determine whether a viable safer alternative is available.  The alternative ultimately selected would inform DTSC’s regulatory response, which could range from no action to sales prohibitions.

The proposed regulations represent a paradigm shift in the regulation of chemicals and products, having significant implications for all members of a product’s value chain.  The process for identifying Priority Chemicals and Priority Products is complicated and information-intensive.  Products undergoing an alternatives assessment will require a substantial resource commitment.  To help ensure compliance, reduce the risk of reputational harm, maintain market presence, and potentially identify new opportunities, companies will need to understand the process, closely monitor future DTSC pronouncements and be prepared to respond appropriately.

Companies placing products into the stream of commerce in California that have not yet reviewed the proposed regulations are probably doing so now.  Although many industry representatives actively participated in the collaborative drafting process, many more did not, mistakenly believing that their products were not “consumer products” and therefore would not be affected.  The reality is that only a limited universe of products is excluded from the definition of consumer product or otherwise eligible for some type of exemption.

Public comments on the proposed regulations are due on November 1, 2010, the same date as the public hearing on them.  DTSC intends to complete the formal rulemaking process by the end of 2010, as required by statute.  A copy of the proposed regulations, a set of Frequently Asked Questions, a conceptual flowchart, and other information is available here.

Readers that are familiar with the previous draft of the regulations may be interested in the type of changes that DTSC incorporated into the current proposal.  DTSC claims that the changes:

  • Address criticism that the initial scope of chemicals list was too narrow.  DTSC has significantly broadened the proposed scope by expanding the lists of authoritative bodies that could be consulted for establishing the Priority Chemicals list.
  • Respond to concerns that the previous draft regulation’s lack of deadlines could cause unintended delays.  Proposed deadlines are now included for both chemicals and products lists along with specific timelines for various regulatory steps.  (These are set out in more detail below.)
  • Additionally, DTSC has added a tiered process for alternative assessments intended to reduce the time for identifying safer alternatives and provide more specific performance targets to move manufacturers through the regulatory process.
  • Address comments regarding the complexity of the process.  DTSC has simplified the process somewhat and clarified what information would be required and how it would be submitted.
  • Respond to requests to have public comments on regulatory actions.  DTSC now proposes to allow public comment on any regulatory responses that are triggered by a DTSC ruling or determination.

The proposed regulations include the following deadlines:

  • The proposed initial list of Chemicals under Consideration must be issued for public review and comment no later than June 1, 2011;
  • The final initial list of Chemicals under Consideration must be issued no later than March 1, 2012;
  • The proposed initial list of Priority Chemicals must be issued for public review and comment no later than July 1, 2012;
  • The proposed initial list of Products under Consideration must be issued for public review and comment no later than March 1, 2013;
  • The proposed initial list of Priority Products must be issued for public review and comment no later than September 1, 2013;
  • The final initial list of Priority Products must be issued no later than December 1, 2013.

Future postings may delve further into various aspects of the proposed regulations, as well as review public comments that are submitted to DTSC.

Update – Impending Release of California's Draft Green Chemistry Regulations

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Green Chemistry Regulations:

Here’s a quick update for those who are tracking the development of California’s Green Chemistry Regulations for Safer Consumer Products.  I was told by a reliable source this afternoon that the Department of Toxic Substances Control (DTSC) will release tomorrow, September 14, a revised draft of the regulations.  This will commence the formal rulemaking process, which requires public hearings and a 45-day public comment period.  It should be an interesting four months as DTSC sprints to complete the rulemaking process by the January 2011 statutory deadline. 

According to an email that DTSC circulated late on September 13, the Department will post the Initial Statement of Reasons,  the 45-day notice of public comment, a list of frequently asked questions, and a  news release announcing the proposed regulation at 10:00 am (Pacific) at: http://dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/Proposed-Regulation.cfm.

DTSC Posts Public Comments on Draft Green Chemistry Regulation for Safer Consumer Products

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Green Chemistry Regulations:

The California Department of Toxic Substances Control (DTSC) circulated the following announcement, informing stakeholders that the agency published all public comments received to date on the draft Green Chemistry Regulation for Safer Consumer Products.  The comments should make interesting reading.  Those of potential importance may be featured in future postings on the Green Chemistry Law Report, so stay tuned!

“DTSC: Green Chemistry Initiative

As part of DTSC’s commitment to transparency and public participation, we have posted, in the order received, all public comments on the Green Chemistry Initiative draft Regulation for Safer Consumer Products  http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/gc_draft_regs.cfm.

The regulation reflects nearly 16 months of collaboration with stakeholders, including numerous formal and informal meetings and workshops; input from the Green Ribbon Science Panel; and comments on the conceptual process flowchart, earlier drafts and the draft regulation outline released in the spring of 2010.

DTSC requested public comments during this informal comment period be received by July 15. This posting includes the comments received to date. Additional comments are expected and will be posted when received.

DTSC will now evaluate all comments and consider changes to the regulation. DTSC expects to move into the formal Administrative Procedure Act (APA) rulemaking process in late summer.”