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DTSC Priority Product Work Plan Workshop Reveals Agency’s Next Steps

At its September 25, 2014 Priority Product Work Plan workshop in Sacramento, the California Department of Toxic Substances Control announced its expectation that its draft Priority Product Work Plan will be finalized in early 2015 and that the Work Plan’s implementation will involve mandatory data call-ins, stakeholder meetings and workshops.  The outcome of that implementation process will be the identification of Priority Products, and DTSC expects to identify no more than 10 Priority Products in any given identification round.

The Safer Consumer Products Regulations, finalized in October 2013, require DTSC to publish a Priority Product Work Plan and to update it every three years.  The September 25, 2014 workshop followed DTSC’s September 12, 2014 release of the draft Priority Products Work Plan, as GLO previously reported.  The Work Plan’s purpose, according to the agency, is to clearly describe what product categories will be evaluated for identification as Priority Products and to create a starting point for research and dialogue.  Priorities for screening product categories include biomonitoring results, chemicals detected in indoor air monitoring, sensitive subpopulations and water quality monitoring evidence.  Under the Safer Consumer Products Regulations, products identified as Priority Products must undergo alternatives analyses and are subject to regulatory responses ranging from labeling to use restrictions to product bans.

DTSC representatives at the workshop provided other updates on implementation of the Safer Consumer Products Regulations:

  • The informational Candidate Chemical list will be updated soon, to account for additional chemicals identified in the underlying “list of lists” that constitutes the formal regulatory identification of Candidate Chemicals.
  • The draft Priority Products list, released in March 2014, is being refined.  DTSC expects to publish a formal Priority Product rulemaking package later this year.  Among the expected revisions to the draft Priority Product list:
    • Adding the flame retardant TCEP to the category of children’s foam-padded sleeping products containing TDCPP
    • Eliminating surface cleaners from the paint stripper/methylene chloride category
    • Narrowing the spray polyurethane (SPU) foam system category to two-part systems and unreacted methylene diphenyl diisocyanate (MDI)
  • DTSC expects to release its Alternatives Analysis guidance by the end of 2014.  DTSC will solicit input on such guidance from the Green Ribbon Science Panel, which is meeting on October 19 and 20, 2014.
  • No regulatory responses are expected to be imposed under the program until after alternatives analyses are complete — meaning  probably in the 2016-2017 time period.

DTSC reiterated its position that the Work Plan is intended as a market signal.  On numerous prior occasions over the years, DTSC has stated that elements of the Safer Consumer Products Regulations, like the Candidate Chemical list and the draft Priority Product list, are intended to transmit a signal to industry to reconsider whether chemicals in products are necessary and whether safer alternatives exist.

That said, the agency seemed wholly taken by surprise in March 2014, when it encountered strong backlash from roofing companies and other entities in response to DTSC’s draft identification of SPU foam systems as a Priority Product, with those entities suffering lost business in the wake of negative consumer response almost immediately after the release of that draft Priority Product list — as strong a “market signal” as a business can get. Businesses affected by the proposed identification of SPU foam systems complained that DTSC had not consulted with industry and was relying on old and inaccurate data. At the recent September 25, 2014 Work Plan workshop, numerous representatives of the recreational angling industry made similar criticisms about DTSC’s identification of fishing equipment, stating, e.g., that DTSC was relying on data from other U.S. regions not relevant to California conditions.  Many of these representatives questioned the need to even address fishing equipment at all, quoting Los Angeles Times political columnist George Skelton on this issue:  “Doesn’t the state of California have higher priorities to focus on?”

DTSC’s narrowing of the SPU foam system product category may evince DTSC’s willingness to listen to affected stakeholders and modify its proposals accordingly.  In light of that, all stakeholders affected by the draft Priority Product Work Plan should take advantage of the opportunity to submit public comments, which are due by October 13, 2014.

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.