California Marching Toward Adoption of Green Chemistry Regulations

by Manatt, Phelps & Phillips, LLP

More than two years behind schedule, with no one apparently satisfied with the form of its regulations, the California Department of Toxic Substances Control (DTSC) appears to be taking the final steps toward adopting its green chemistry regulations, otherwise known as the "Safer Consumer Products Regulations."  These groundbreaking regulations will establish a process to identify and prioritize consumer products containing chemicals of concern for evaluation of safer alternatives and the potential imposition of restrictions by DTSC.

In 2008, Assembly Bill 1879 was enacted mandating that DTSC adopt such regulations no later than January 1, 2011.  Although DTSC missed the statutory deadline, after multiple drafts, it appears that DTSC is now readying its Safer Consumer Product Regulations for adoption.  The application of these unprecedented regulations is wide-ranging, potentially affecting products from computers to shampoo to automobiles, with only a few outright exemptions consisting of prescriptive drugs and devices, dental restorative materials, medical devices, food, and pesticides.

Most recently, on February 15, 2013, the Secretary of the California Environmental Protection Agency announced that the agency will convene a public meeting of the California Environmental Policy Council (CEPC) on February 28, to consider the need for a multimedia evaluation of the Safer Consumer Products Regulations.  The CEPC will consider a DTSC staff report-Recommendation on Need for a Multimedia Evaluation of the Safer Consumer Products Regulations-issued this month, and determine whether or not DTSC's proposed regulations will have a significant adverse impact on public health or the environment.  AB 1879 required DTSC to prepare, and submit to the CEPC for review, a multimedia evaluation prior to adopting the regulations.  DTSC has concluded that the regulations would not have any significant adverse impact on public health or the environment.  DTSC may adopt the regulations without being subject to a multimedia evaluation if the CEPC conclusively determines that the regulations will not have any significant adverse impact on public health or the environment. 

Other DTSC actions signal that it is in the final stages of preparing to issue the regulations.  Ten external scientific peer-review reports evaluating the scientific basis of the regulations have been added to the rulemaking file, as noticed by DTSC in November 2012, and the Initial Statement of Reasons for the Safer Consumer Product Regulations was revised by DTSC in December 2012.

Most important, however, DTSC has issued what may be the last of its many revisions to the proposed regulations.  On January 29,  in an effort to address comments received in the fall on its last draft, DTSC issued a revised draft of the proposed regulations.  Comments are due by February 28, 2013.  Perhaps one of the most significant changes to the draft regulations is the expansion of the public participation provisions.  The regulations now provide for public review and comment on Alternative Assessment (AA) reports and final AA reports must respond to public comments.  DTSC has indicated that the public comment process is in lieu of requiring that certified assessors prepare AAs, as proposed in previous drafts.  The proposed regulations now also set forth that the Priority Products list will be established and updated through the Administrative Procedure Act rulemaking process.

Other changes to the draft regulations include, among other things, the addition of "Assemblers" to the list of responsible parties and renaming the list of "Chemical of Concern" (COC) to the "Candidate Chemicals" (CC) list, which has been expanded to include chemicals classified by the European Union as Category 1 respiratory sensitizers and pollutants identified under the federal Clean Water Act section 303(d).  Additionally, the trade-secret protection provisions have been revised to allow masking of a precise chemical identity for an alternate chemical being considered or proposed for which a patent application is pending.

DTSC has indicated that it will adopt the Safer Consumer Products Regulations this year and is taking action to do so.  Businesses should take notice of the breadth of these proposed regulations, and plan accordingly.  These unprecedented rules promise to change, sooner or later, many varied products sold not only in California, but far beyond its borders.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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