American Coatings Association

Last month, ACA submitted comments to California’s Department of Toxic Substance Control (DTSC) on the latest draft (Oct. 31, 2011) of the department’s Safer Consumer Product Alternatives Regulations to implement the state’s Green Chemistry initiative. ACA's comments focused on: 1) prioritizing the very large list of Chemicals of Concern; 2) raising the very low De Minimis level; 3) extending the time for completion of Alternatives Assessment Report, and; 4) obtaining an exemption for PaintCare^® from End-of-Life Management requirements.

The proposed regulations are a rewrite of regulations DTSC  was set to adopt late last year. However, the rules were tabled after drawing criticism from the environmental community, industry, and California Assembly Member Michael Feuer (D), author of the legislation (A.B. 1879) mandating the rules.The next version of the draft regulations is expected to be released by DTSC in late February, with the final regulations released by the end of 2012.

The California Green Chemistry Initiative seeks to reduce the amount of “toxics” in consumer products, under a regulatory program, enacted by law in 2008. The Green Chemistry Initiative is being designed by DTSC, in conjunction with the Green Ribbon Science Panel (mostly composed of academic experts). Under A.B. 1879, the regulations must provide a science-based approach for building a list of chemicals that pose the greatest risks, for identifying products that contain the chemicals, and for analyzing safer alternatives.

Under the current proposal, the scope of the program is broader and the timeframes for identifying chemicals of concern and for building a priority list of products is shortened from the 2010 regulatory proposal.

For example, the regulations would immediately establish a list of chemicals of concern composed of more than 3,000 substances based on the work already completed by several authoritative bodies, compared with the list of 800 chemicals targeted under the prior proposal.

Also, the current proposal within six months would recommend an initial list of priority products. Initially the list would be limited to two to five types of products. The earlier regulatory proposal sought to limit the product categories during the first five years. Both lists will be reviewed at least once every three years under the latest proposal.

DTSC is also proposing expanding the primary responsibility for compliance beyond manufacturers to include product designers and U.S. importers. Only products containing less than 0.01 percent of a hazardous chemical would be exempted from the regulations, rather than the one-tenth of 1 percent as previously proposed.

The California Safer Consumer Product Alternatives Regulations are intended to address chemical exposure during consumer use and the environmental impacts of consumer products during useful life and after disposal. ACA comments echoedtestimony it had provided at a Dec. 5 DTSC workshop on the draft regulations and focused on the lack of prioritization of the very large Chemicals of Concern List, the extremely low De Minimis levels included in the draft, and the unreasonably short timelines for completion of preliminary and final Alternatives Assessment Reports.

ACA comments underscored that the DTSC draft regulations offer a “narrative standard” approach; that is, rather than explicitly spelling out the required steps in the regulatory process, DTSC has offered a general narrative of what it will do and how industry should respond during the regulatory process. ACA argued that this vagueness may lead to inconsistent compliance across priority product manufacturers and across industries and, what’s more, without adequate efforts to clarify the regulations, the entire regulatory effort will be subject to challenge as actual proposals are published that impact actual products.  ACA contended that a “narrative standard” cannot seek to regulate the marketplace in California on the principle that the department “will know it (risk) when they see it,”  and that the hallmark of any successful regulatory initiative at the federal, state, or local level is a clear definition of the standard of care being imposed to address risk. 

“To emphasize this point, DTSC need only consider that any product drawn into the eventual regulatory process will be one that is currently viable in the marketplace, meeting customer demands for quality and performance, and offered at a price that makes it economically viable,” stated ACA in its comments. “In the case of paint and coatings products, we might add that we are confident that our entire product stewardship effort, from formulation to product labeling (including hazard precautionary and use instructions) to use and end-of-life management, is offering consumers safe products that are used safely.  We expect that other consumer product manufacturers would feel the same way about their products.”

ACA stressed that to provide certainty, to help direct research funding, to pursue well-defined technology roadmaps and directed innovation, and to ensure customer preferences are being met, the consumer products industry needs more certainty from the regulations and from DTSC. 

ACA is an active member of the Green Chemistry Alliance, a coalition of industry trade groups and manufacturers that advocate the use of a risk-based, scientific approach for advancing green chemistry principles that will enhance the public’s trust in government agencies to protect people and the environment. 

The draft regulations are available at http://www.dtsc.ca.gov/SCPRegulations.cfm.

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