Draft DTSC Work Plan Signals Expansion of California Green Chemistry Initiative

As part of its Safer Consumer Products Regulation (SCPR) under California’s Green Chemistry Initiative, the Department of Toxic Substances Control (DTSC) on September 13, 2014 issued its Draft Priority Product Three-Year Work Plan. Companies that manufacture or sell products within the seven categories identified in the draft Work Plan will need to pay close attention to the pre- and then final rulemaking process.

Under the SCPR, DTSC is required to:

• identify products that contain one or more of the nearly 1200 “candidate chemicals” that have been identified by DTSC based on the risk that they may present to the environment or human health,
• prioritize those products for review under an “alternatives analysis” to assess whether there are safer alternatives to the chemicals presently in use, and then
• consider a number of possible “regulatory responses” based on the results of the alternatives analysis, which at its most extreme includes the possibility of banning the sale of the product in California. 

DTSC’s initial list of proposed “priority products,” which is still in the rule-making process, includes:

• Spray Polyurethane Foam (SPF) Systems containing unreacted diisocyanates,
• Children’s Foam Padded Sleeping Products containing Tris(1,3-dichloro-2-propyl) phosphate (TDCPP), and
• Paint and Varnish Strippers with methylene chloride.

The seven broader categories of products that DTSC will review as part of the three-year Work Plan are:

• Beauty, Personal Care and Hygiene Products (body wash and soaps, cosmetics, nail and hair care products, lotions, etc.),
• Building Products—limited to paints, adhesives, sealants, flooring,
• Household, Office Furniture and Furnishings—limited to those treated with flame retardants and/or stain resistant chemicals,
• Cleaning Products,
• Clothing,
• Fishing and Angling Equipment, and
• Office Machinery—e.g., printer inks, specialty paper, toner cartridges.

The Work Plan can be downloaded here. DTSC is holding preliminary Work Shops on September 25 in Sacramento, and September 29 in Cypress. Comments on the draft Work Plan are due by October 13, 2014, although DTSC acknowledges that implementation of the SCPR, and in particular selection of priority products, will be a long process, and that significant input from all stakeholders will be critical. 

-- Josh Bloom and Chris Jensen

For more information, please contact Josh Bloom at (415) 228-5406 or jab@bcltlaw.com; Chris Jensen at (415) 228-5411 or cdj@bcltlaw.com; or Samir Abdelnour at (415) 228-5443 or sja@bcltlaw.com.

DTSC Announces Initial Priority Products Under Green Chemistry Regulations

The next phase of California’s Safer Consumer Products regulations (SCPR), also known as the Green Chemistry regulations, began on March 13, 2014, with the Department of Toxic Substances Control’s announcement of the three initial “priority products” proposed for comprehensive review and “alternatives analysis” under the SCPR.  Those products are being proposed by DTSC as priority products because they contain one or more chemicals of concern identified by DTSC under the regulations, and, according to DTSC, have the potential to cause significant harm to people or the environment, are widely used, and create the potential for significant exposure to the public from the chemicals in the products.

The three products proposed for designation as priority products, and the chemicals for which they have been associated, are:

• Children’s foam sleeping products containing chlorinated Tris (TDCPP, or tris(1,3-dichloro-2-propyl) phosphate), used as a chemical flame retardant,
• Spray polyurethane foam systems containing unreacted diisocyantates (SPF), used in home and building insulation, weatherization, sealing and roofing, and
• Paint stripper containing methylene chloride.

The next step will be a rulemaking process that will result in DTSC’s final determination whether to list those products, and the adoption of associated regulations.  Once the regulations are adopted, which will likely take at least another year, manufacturers of the products will need to notify DTSC that they make one of the priority products, and ultimately perform an “alternatives analysis” to determine whether safe ingredients are available and feasible.

 

The selection of children’s foam sleeping products containing Tris was particularly curious because those products have already been subject to significant and widespread citizen enforcement under Proposition 65.  Putting aside whether those Proposition 65 cases were warranted, manufacturers of those products are generally phasing out the use of Tris as a chemical flame retardant.  Why DTSC selected a product for which manufacturers have essentially been performing some level of alternatives analysis for the past few years is not readily apparent.

 

--Josh Bloom

 

For more information, contact Josh Bloom at jab@bcltlaw.com or (415) 228-5400.