California Green Chemistry Regulations Released For Formal Public Comment


Source: McKenna Long & Aldridge
Related Topics: Government Agencies Green Chemistry

After two years of public workshops and informal drafts of regulatory text, the California Department of Toxic Substances Control (“DTSC”) has released its proposed regulations implementing one of the Green Chemistry Initiative laws, AB 1879.  The 92 pages of proposed regulations, and the accompanying 141 pages of explanatory text, in the form of DTSC’s Initial Statement of Reasons, can be found here.

Formal comments must be submitted by November 1, 2010. AB 1879 requires DTSC to establish a process for:  (1) identifying and prioritizing chemicals of concern (“COCs”) in consumer products; (2) identifying “safer” alternatives to COCs in consumer products; and (3) identifying and imposing regulatory responses, ranging from product labeling to outright bans.  As reported in earlier Client Alerts, “consumer products” is a term defined broadly to include even business-to-business sales and leases of products; only specified categories of products, such as pesticides and foods, are exempted from the law.

Some key aspects of the proposed regulations include:

  • Regulatory authority for DTSC to issue mandatory data call-ins requiring submission of broad arrays of information, including product ingredient and sales/marketing information;
  • DTSC to post on its website all submissions received (omitting information designated as trade secret) and the fact of compliance or noncompliance by specific entities;
  • DTSC to release a proposed list of “Chemicals Under Consideration” by June 2011 for public comment, from which a list of “Priority Chemicals” ultimately shall be generated;
  • DTSC to generate a list of “Priority Products,” i.e., a list of consumer products containing Priority Chemicals, by 2013.
  • An extremely complex process for “responsible persons” to undertake safer alternative assessments of Priority Products.  “Responsible persons” include product manufacturers, distributors and retailers.  These assessments must be undertaken either by an accredited third party assessor, as defined, or by an accredited in-house company employee.  In the latter case, the assessment must be evaluated for compliance and verified by an independent third party accredited assessor;

A de minimis exemption for products containing Priority Chemicals at less than the specified regulatory de minimis amount.  The responsible party must apply for the exemption, and DTSC retains the authority to deny the exemption or to set a lower de minimis level for a Priority Chemical in a specific product.

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