On Halloween, the California Department of Toxic Substance Control (DTSC) issued its long-awaited informal draft revision of the Safer Consumer Products regulation. After reading it and discussing it with the DTSC, representatives of the chemical industry at the 2011 Statewide Environmental Summit in San Diego on November 9, and fellow members of the Green Ribbon Science Panel (GRSP) at a meeting in Sacramento on November 14, I think it is more treat than trick.
The regulation is more streamlined, more straightforward, and closer to being implementable than previous versions. The general approach got approving nods from just about everyone, but that does not mean there are no more significant hurdles. For instance, it proposes that soon after the regulation comes into force, a “rather large” and “robust” list of Chemicals of Concern (CoC) will be published that's based on “authoritative” and “reliable” lists. There was general agreement that this is a good way to start for two reasons:
- It will enable the DTSC to move forward quickly.
- The chemicals are well known and well understood.
The DTSC also feels that having a large list (the department claims it will be around 3,000 substances) would have the effect of dampening nontargeted manufacturers' desire to simply replace the substances and move on. Why? Having a small list makes it easier to identify replacement substances, but it increases the danger that the replacement could be a future CoC and thus would be a “regrettable substitution.” One of the GRSP members said there could be well more than 20,000 substances that meet the CoC definition, so even this seemingly large number may not be adequate. Considering that there are 60 million molecules with a Chemical Abstract Service (CAS) number, I would expect that number to be low (though admittedly not all of them are in commerce).
The primary challenge is to select the list and then determine whether/how to adopt the entirety of substances in a given list or just select ones. The source lists identified in the draft are not all relevant to products, and some of the GRSP experts do not view all of the lists as credible.
The initial scope of Priority Products (PP) was removed, as well. Thus, the DTSC is able to consider products that are not only problematic, but also will help drive a robust implementation of the process. One significant area of contention has been whether the regulation should address the “worst first” or address “low-hanging fruit” first. The problem with the former approach, which the industry has been promoting, is that there is no way to define “worst” — we could argue about it for years and not get anything done. Furthermore, these could be very difficult problems that take a long time and extensive resources to resolve. The challenge this regulation faces in the short term is to put in place an alternatives assessment process that is robust but cost-effective for both the industry and the DTSC.
Members of the GRSP have often advised the DTSC to start with a “pilot” approach, in which it selects a very limited number of PPs and CoCs. If they are judiciously chosen, this would allow both the industry and the DTSC to identify process problems to resolve, as well as best-practices, before broadly disseminating the regulatory requirements. The department has indicated it expects to start with no more than two to five PPs.
What would a PP look like? Department director Debbie Raphael says the term would be defined narrowly and concisely. To me, that means we should expect PPs defined like “copper in brake pads of automobiles,” rather than the far more broadly defined “copper in automobiles,” or “chlorinated TRIS in polyurethane foams used in furniture” or “DEHP in infant pacifiers”.
The actual Alternatives Assessment (AA) process has been clarified and streamlined, too. A provision was added to enable companies that already have an internal AA process to use theirs instead of the one defined in the regulation if it produces the same result. Additionally, the onus of third-party verification was removed. However, after the initial set of PPs and the “pilot” process mentioned above, “Certified Assessors” will have to implement AAs as of 2015. CAs can be in-house or external consultants.
Why delay? The need to define the certification requirements and identify/approve certifying bodies is, to me, the biggest reason. In addition, this will give the department and, again, the industry time to understand the AA process.
Many other significant items changed, mostly for the better. You may obtain the draft revision from the DTSC SCP resource page. The public comment period is open through December 30.
One of the biggest challenges facing the DTSC is that AB 1879, the legislation behind the SCP regulation, has no provision for funding. So unlike the European Chemicals Agency with its implementation of REACH, the DTSC cannot charge manufacturers for any aspect of the regulatory requirements. As Raphael puts it, the DTSC has to “rob Peter to pay Paul” by using current resources to manage this program. This provides more incentive for an initially narrow list of PPs.
Once the DTSC can show that this program can work and is effective, I would expect legislation granting it the right to charge the industry for various aspects of the regulation (such as submitting an AA plan, submitting the actual AA, and any trade secret requests) to fund this activity.
There is a public workshop on December 5 in Sacramento. If you are not able to attend in person, you can do so via the Webcast.