California continues to forge ahead with a new complicated regulation intended to eliminate the use of toxic chemicals in products and ensure that alternatives are safer: Safer Consumer Products Alternatives Proposal
First, it’s still misnamed. It’s not just consumer products, it’s every product that ever was or will be in the state, except for industrial intermediates and R&D. Looks like exports of Christmas presents to my siblings are still at risk (see previous post: http://wp.me/pzzO5-5a).
Basically, the proposal would allow DTSC to bring product commerce to a halt or, rather, to take over production decisions as they guide companies through the approval process for what chemicals can be in products. Mostly that’s only for products that show up on the “Products Containing Priority Chemicals” list. Those priority products will trigger mandatory full-blown, professionally produced life cycle assessments of both the existing product and any alternative chemicals to be substituted. And there must be a plan to find safer alternatives, along with regulations to ensure life cycle management until the alternative is in place. But wait, that’s comes only after a few other hoops:
Listing “Chemicals Under Consideration” come first. These will be chemicals that have any shape or form of physical, chemical, toxicity or ecotoxicity properties anyone has ever thought of (I exaggerate – I don’t see “color” on the list, but the list is only illustrative). DTSC also “may” consider the factors related to the extent of exposure. Presumably, DTSC will be coming up with its own chemical list, but the agency also has to respond to petitions to add chemicals. (It’d be easier to come up with a list of chemicals not under consideration.) Oh, wait, there is a condition prohibiting listing if every portion of the life cycle is adequately regulated by the feds or the state. Who is going to believe that?
Once this list is published as final (after public comment), it triggers potential reporting of pretty much anything DTSC wants by anyone who touches a product containing a “chemical under consideration” throughout the supply chain (even my sister if she decides to give my white elephant gift to someone else to use, unless we have a contract that says she can’t). Product composition, markets, properties, analytical methodologies, you name it that DTSC would need to proceed to creating the “Priority Chemicals” list. The agency can even send requests to out-of-state chemical manufacturers and request info and, since they have no jurisdiction over such companies, DTSC will put up an online dirty-no-goodnik list of non-cooperating companies and their chemical products on a “Failure to Respond List.”
And for those of you trying to avoid getting on the Priority Products list by substituting out (or even reducing the amount of) the “chemical under consideration,” you’ll still have to file a Tier I Alternatives Assessment and a “removed” form. At least it isn’t a professionally created life cycle assessment. But it’s close, as you need to explain the relative reduction in adverse health and/or environmental impacts.
So after collecting whatever data it needs on who knows how many “chemicals under consideration,” DTSC will come up with a list of “Priority Chemicals” based on the relative degree of threat to health or the environment, the reliability of the data (won’t that generate interesting comments) and, most importantly, the availability of DTSC resources. The list is mandated to include carcinogens, reproductive toxins and EPA PBTs. That ought to keep them busy enough without adding more, but petitions will be hot and heavy.
Priority Chemicals will drive listing of “Products Under Consideration” followed by “Priority Products.” Both sets will go through public notice and comment, but you have to believe even the proposed PUC is a black list. DTSC can look at factors that would mitigate exposure in setting under consideration and priority products and companies can file certification of removal or reduction of the priority chemical from their products (along with the Tier I Alternatives Assessment) to get off the list. There’s also a de minimis level – 0.1% or lower if there’s a regulatory level (e.g., MCL), but you have to submit proof it applies. If your product still has a Priority Chemical 60 days after the final list is published, you are in for a world or work: filing a Tier II Alternatives Assessment work plan (and then do it) to find or argue why you can’t find a safer alternative. These must be conducted by an accredited assessor and essentially are full-blown life cycle assessments. In addition, you’ll need to have an end-of-life management program as long as a priority chemical is present.
I think DTSC is hoping that consortia and trade associations are going to do assessments and maybe consolidated reporting on chemicals and product categories to cut down on the cost and paperwork. Otherwise, the entire supply chain is going to be doing duplicative reporting. Regardless, there will be an avalanche of demands upstream and downstream to figure out who’s got what chemicals and who’s covering which products. Not to mention retailers refusing to sell products with chemicals under consideration and, for sure, priority chemicals.
Small businesses (<$1 million in sales) – never fear. DTSC will provide consultation (for a fee).
After going through all the Tier II assessments, DTSC has to decide what regulatory response if any it needs to take on priority products. This can go from nothing to a complete ban on the use of a priority chemical and recalls. At least the proposal will allow public notice and comment on the proposed regulation. Any retailers of the product must be notified of the regulation by the responsible entity.
Timing: in theory, it will begin with the proposed list of Chemicals Under Consideration in June 2011, and the first set of Priority Products by December 2013.
The only way this is going to conceivably work is if DTSC is starts very slowly in selecting Priority Products it lists – like 1 – 5 narrow categories of products.
Comments on the proposed rule are open until Nov 1, 2010.
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