BILL ANALYSIS
AB 1879
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2007-2008 Regular Session
BILL NO: AB 1879
AUTHOR: Feuer
AMENDED: August 20, 2008
FISCAL: Yes HEARING DATE: August 21,
2008
URGENCY: No CONSULTANT: Bruce Jennings
SUBJECT : CHEMICAL POLICY
SUMMARY :
Existing law :
1) Authorizes the Department of Toxics Substances Control
(department) to regulate packaging containing lead,
mercury, cadmium, or hexavalent chromium; jewelry
containing lead; lights containing lead or mercury;
products containing mercury such as thermometers,
barometers and thermostats; and covered electronic devices
containing lead, cadmium or mercury.
2) Authorizes the Integrated Waste Management Board to
regulate, among other things, products containing mercury
such as batteries, switches, relays and ovens and gas
ranges with mercury diostats; chemicals and measurement
devices in school labs that contain mercury; and novelty
items containing mercury.
3) Requires the California Air Resources Board to adopt
regulations to achieve the maximum feasible reduction in
volatile organic compounds emitted by consumer products,
pursuant to Section 41712 of the Health and Safety Code.
4) Authorizes the Air Resources Board to reduce emissions of
toxic air contaminants to the lowest level achievable
through application of best available control technology or
a more effective control method, pursuant to the Toxic Air
Contaminants Act (Section 39650 et seq. of the Health and
Safety Code).
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5) Prohibits any person in the course of doing business from
knowingly discharging or releasing a chemical known to the
state to cause cancer or reproductive toxicity into water
or onto or into land where such a chemical passes or
probably will pass into any source of drinking water, as
specified, pursuant to the Safe Drinking Water and Toxic
Enforcement Act of 1986 (Section 25249.5 et seq. of the
Health and Safety Code).
6) Prohibits the sale of toys, art products, jewelry, faucets,
packaging materials and other consumer articles that
contain prohibited levels of toxic substances such as lead,
mercury, and hexavalent chromium.
7) Prohibits the manufacture, production, preparation,
compounding, and packing, selling, offering for sale, or
keeping for sale within California a package of misbranded
hazardous substance or banned hazardous substance pursuant
to the California Hazardous Substances Act.
8) Authorizes the director of the Department of Pesticide
Regulation to suspend, cancel or prohibit the sale and use
of a registered pesticide product lacking complete and
adequate studies regarding health effects pursuant to the
Birth Defect Prevention Act.
9) Prohibits a person from manufacturing, processing, or
distributing in commerce a product containing
pentabrominated diphenyl ether (Penta BDE) or
octabrominated diphenyl ether (Octa BDE).
This bill :
1) Requires the department, by January 1, 2011, to adopt
regulations to establish a process to identify and
prioritize chemicals or chemical ingredients in products
that may be considered a "chemical of concern," in
accordance with a review process, as specified (i.e.,
multimedia life cycle evaluation).
a) Requires the department to adopt regulations
according to an interagency consultative process that
includes public participation.
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b) Includes a prioritization and identification process
that includes a consideration of specified factors
(e.g., chemical volume, exposure potential, potential
effects on sensitive subpopulations).
c) Requires the department to develop criteria for
evaluating chemicals and alternatives, as specified
(e.g., a consideration of hazard traits, chemical
characterization, and health endpoints with reference to
the information compiled by the Clearinghouse).
d) Requires the department to reference and use
available information from other nations, governments,
and authoritative bodies that have undertaken a similar
chemical prioritization process, stipulating that the
department is not limited to using only such
information.
2) Requires the department, in adopting regulations, to
prepare a multimedia life cycle evaluation, as specified.
a) Requires the evaluation, including information
gathered by the department, to consider the following
impacts:
Emissions of air pollutants (e.g., ozone, particulate,
toxic air contaminants, greenhouse gases);
Contamination of surface and groundwater and soils;
Disposal or use of byproducts and waste materials;
Worker safety and impacts to public health;
Other anticipated impacts to the environment.
b) Limits a review by the Council to within 90 days
following notice from the department of intent to adopt
regulations; if the council finds that that the proposed
regulations will cause significant adverse impacts to
public health or the environment, or that less adverse
alternatives exist, the council shall recommend
alternative measures to the department, as specified.
c) Requires the department to adopt revisions to a
proposed regulation within 60 days of receiving notice
from the council for mitigating adverse impacts to
achieve a no significant adverse impact level on public
health or the environment, as specified.
d) Requires the department to conduct an interagency
consultation when evaluating impacts that may result
from the production, use, or disposal of products and
the ingredients they contain.
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3) Authorizes the department to adopt regulations without
subjecting these to an evaluation if the council, following
an initial evaluation of proposed regulations, finds that
the regulation will not have any significant adverse impact
on public health or the environment.
4) Requires the department to adopt regulations to establish a
process for evaluating chemicals of concern in products,
and their potential alternatives in order to determine how
best to limit exposure or to reduce the level of hazard
posed by a chemical of concern, as specified.
a) The regulations shall establish a process that
includes an evaluation of the availability of potential
alternatives and potential hazards posed by
alternatives, as well as an evaluation of critical
exposure pathways.
b) Requires the regulations to include life cycle
assessment tools that take into consideration, at least
the following factors:
i) product function or performance;
ii) useful life;
iii) materials and resource consumption;
iv) water conservation;
v) water quality impacts;
vi) air emissions;
vii) production, in-use, and transportation energy inputs;
viii) energy efficiency;
ix) greenhouse gas emissions;
x) waste and end-of-life disposal;
xi) public health impacts;
xii) environmental impacts; and,
xiii) economic impacts.
c) Requires the department to adopt regulations to
specify a range of regulatory responses that may result
from the outcome of the alternatives analysis, including
at least the following:
i) no action;
ii) requiring additional information to assess a chemical
of concern and its potential alternatives;
iii) requiring labeling or other product information;
iv) restricting the use of a chemical of concern in a
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product;
v) prohibiting the use of a chemical of concern in a
product;
vi) controlling access to or limiting exposure to a
chemical of concern in
a product;
vii) requiring a manufacturer to manage a product at the
end of its
useful life;
viii) requiring the funding of green chemistry where no
feasible safer
alternative exists;
ix) other requirements determined by the department.
d) Requires the department to ensure that the tools used
in this process allow for an ease of use and
transparency of application, as specified.
5) Requires the department to establish and appoint members to
a Green Ribbon Science Panel, with expertise that includes
fifteen disciplines (chemistry, environmental law,
nanotechnology, maternal and child health), according to
public meeting laws and procedures as specified.
a) Authorizes the panel to take various actions to
advise the department and council on science and
technical matters for reducing adverse health and
environmental impacts of chemicals used in commerce,
encouraging the redesign of products, manufacturing
processes, and etcetera.
b) Authorizes the panel to assist in developing green
chemistry and chemicals policy recommendations and
implementation strategies.
c) Advise the department on the adoption of regulations.
d) Advise the department on priorities for which hazard
traits and toxicological end-point data should be
collected.
6) Authorizes a person providing information pursuant to this
article to identify a portion of the information submitted
to the department as a trade secret, with procedures and
details as specified.
7) Exemptions for certain products or categories of products
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(e.g., mercury-containing lights, pesticides).
8) Stipulates that no reimbursement is required by this act
for costs that may be incurred by a local agency or school
district.
COMMENTS :
1) Purpose of Bill . According to the author, AB 1879
represents a balanced, science-based approach to addressing
the danger of hazardous chemicals contained in consumer
products. California consumers deserve a robust and
thoughtful approach to addressing this issue. The existing
regulatory authority of the department is limited by
statute and only applies to certain classes of consumer
products. For example, lead can be regulated in jewelry
and water faucets, but few other products. Hazardous heavy
metals, such as cadmium or mercury, can be regulated in
certain electronic or other devices, but in few other
products.
AB 1879 provides for a more expansive approach without
prejudging what chemicals and what products, or what
actions should be taken. The bill provides an open and
transparent process for identifying and prioritizing the
most dangerous chemicals and for determining what the
department should do about these chemicals contained in
products. AB 1879 is a multi-faceted approach to provide
state regulators with the authority they need to protect
public health and limit Californians' exposure to hazardous
chemicals.
AB 1879 is sponsored by the Department of Toxic Substances
Control
2) Rule 29.10 and Prior Language . AB 1879 has been assigned
to the Senate Committee on Environmental Quality (SEQ)
pursuant to Rule 29.10 based on the substantive amendments
that have now been added to the language requested by the
Administration.
When last heard in SEQ, the bill authorized the department to
regulate seven listed chemicals in products (e.g., arsenic,
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lead, mercury) and to potentially apply this framework to a
larger group of chemicals. The bill passed SEQ on a vote
of 5-2. More recently, the author received language
approved by the administration for amending this bill which
is the subject of this analysis.
3) Contingent Enactment with SB 509 (Simitian) & the Toxics
Information Clearinghouse . AB 1879 and SB 509 (Simitian)
will now be contingently joined and several amendments
affecting AB 1879, including definitions and related
provisions, will appear in SB 509.
As previously heard in SEQ, SB 509 sought to address the
subject of product ingredient disclosure for a group of
consumer products. The prior contents of SB 509 have been
eliminated and replaced with a provisions establishing the
Toxics Information Clearinghouse, including the following:
Requires the Office of Environmental Health Hazard Assessment,
by January 1, 2011, to evaluate and specify hazard traits
and other data to be included in the Clearinghouse, as
specified.
Requires the department to develop requirements and standards
related to the design of the Clearinghouse and data quality
and test methods that govern the data which is made
available to the public, including data sharing, as
specified.
In addition to amendments relating to the Toxics Information
Clearinghouse, there are also exemptions that the
Administration has asked to be included. And while there
is some discussion about whether other products should be
exempted, there is also a general provision which is worded
as follows:
25257.1(c ) The department shall not duplicate or adopt
conflicting regulations for product categories already
regulated or subject to pending regulation consistent with
the purposes of this article.
This "catch-all" provision has been stated with such breadth
as to raise questions about whether this will cause the
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department to face numerous arguments for dismissing the
applicability of this act based on ineffective or
fictitious regulatory frameworks. It is strongly
recommended that this section be revisited and revised,
recognizing that there may not be time in this year's
closing session.
4) Developing a process to evaluate appropriate actions for
chemicals of concern . The bill authorizes the department
to address chemicals in consumer products, which in turn
contains three components. First, the bill authorizes the
department to adopt regulations to "determine how best to
limit exposure or to reduce the level of hazard posed by a
chemical of concern."
Second, in its evaluation about limiting exposure or reducing
hazard, the department is to consider "availability of
potential alternatives and potential hazards posed by those
alternatives, as well as an evaluation of critical exposure
pathway(s)." Within this framework, the department is also
to include "lifecycle assessment tools that take into
consideration a listing of at least 13 factors, such as
product function, water quality impacts, greenhouse gas
emissions, and public health impacts.
Third, the final element is to include the "the range of
regulatory responses that may result from the outcome of
the alternatives analysis." The bill lists nine options.
While this appears to give the department the authority to
take listed actions, this is not explicitly and clearly
stated in the bill. Usually, an administrative agency is
given authority by the Legislature to take some action and
then the authority to adopt regulations to implement the
authority.
The architecture of AB 1789, while having the strength of
being expansive in scope is also a potential weakness when
it comes to achieving an expedited action on recognized
hazards. Depending on how this process is implemented, the
state faces a significant and potentially unreasonable
burden before any of the range of regulatory responses can
be deployed.
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The promise of AB 1879 is that it may replace the
chemical-by-chemical legislative agenda that the California
Legislature has had to increasingly confront over the last
decade. The increasing demands for an effective chemical
policy are largely due to the failure of federal statutes
and programs, the department needs to demonstrate that it
can rapidly deploy a program capable of expeditiously
acting on known chemical hazards and not replicate failed
federal programs, which are too often characterized by
numerous procedural steps and exhaustive analyses, but with
few substantive protections.
5) Science Panel Review . The bill directs the department to
appoint a science panel that represents several relevant
disciplines. The panel is to advise the department on
"scientific and technical matters," to assist in
"developing green chemistry and chemicals policy
recommendations and implementation strategies and details,"
to "ensure that these recommendations are based on a strong
scientific foundation," to advise on chemicals for which
data should be collected; and, to advise on the development
of regulations. The issues of this provision include
whether it is appropriate for the director of the
department to name all members of this panel, in contrast
to other existing law provisions, such as the Air Resources
Board's Scientific Review Panel, which includes
appointments by the Senate and Assembly. Additionally,
there are no conflict-of-interest provisions that apply to
appointees, unlike other science panels, such as the
Scientific Review Panel.
6) Environmental Policy Council Review . Before being adopted,
the two sets of regulations described above would have to
be submitted to the Environmental Policy Council, along
with a "multimedia lifecycle evaluation" that is prepared
by affected agencies and that appear to allow an
independent process for public comment. The Council is
established in the Resources Code and consists of the heads
of the seven boards, departments, and offices of Cal EPA,
plus the secretary of Cal EPA. The department would also
have to consult with other agencies.
Regulations would not have to go through this process if the
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department "conclusively determines that the regulation
will not have any significant adverse impact on public
health or the environment."
Does the inclusion of such a process elongate the process and
unnecessarily delay action that might otherwise be taken on
a consumer product? Are there mechanisms for expediting
action on products posing imminent hazards? What about
situations in which other regulatory regimes have already
taken actions? Or what is the reasonableness in procedural
delays in the context of feasible alternatives?
7) Confidential Business Information . Recent language changes
to these provisions were taken to clarify that
environmental and public health information collected
pursuant to this article shall not be subjected to claims
of trade secrecy. Unfortunately, the language was cast in
terms of "hazardous traits." While this phrasing clearly
intends to convey the notion that environmental and public
health information collected pursuant to this article is
not subject to claims of trade secrecy, it would be prudent
to have this language amended to provide greater clarity on
this point.
8) Generating new information to more fully characterize
chemicals . One of the challenges that AB 1879 confronts is
how to address tens of thousands of chemicals that remain
to be characterized with respect to environmental and
public health impacts. While the bill and its companion,
SB 509, hope to draw from other sources of information,
such as international data sets, many of these sources face
a similar paucity of data. Moreover, much of the existing
data is old, obsolete and fails to address a multiplicity
of potential impacts. Of all the life cycle elements
necessary for reviewing chemicals, having a matrix of
information about hazardous chemicals and their potential
alternatives is central to providing a basis for achieving
green chemistry.
While there are possibilities for organizing resources (e.g.,
the University of California) for analyzing the tens of
thousands of chemicals that have been poorly characterized,
the bill is ambiguous about whether and how it might
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address such issues.
9) Providing a Strong Fiscal Basis for Advancing Chemical
Policy . The experience of passing a Global Solutions Act
and the ostensible advance of greenhouse gas regulation in
California has been stymied by the absence of a sustainable
fiscal basis for advancing the state's celebrated program.
While the resources necessary for initiating AB 1879 until
January 1, 2011 appear modest, if the state is to provide
the necessary wherewithal to provide a genuinely
comprehensive program, it is probably inescapable that
future legislation needs to more fully consider a fee-based
program to support the Governor's Green Chemistry
Initiative.
10)Subsequent Legislation? Given the lateness with which the
Administration has delivered language to the author on this
bill and the constraints with a more deliberative process,
there are a variety of issues that might well be addressed
in cleanup legislation should AB 1879 be enacted. As
typifies various environmental measures that have been
passed by the Legislature in recent years, there is ample
precedent for the enactment of subsequent legislation to
more carefully articulate specific provisions in law.
SOURCE : Department of Toxic Substances Control
SUPPORT : East Bay Municipal Utility District
Heal the Bay
Planning and Conservation League
Breast Cancer Fund, California League of California Voters,
Environment California, Sierra Club
OPPOSITION : American Electronics Association
Consumer Healthcare Products Association
Consumer Specialty Products Association
Pharmaceutical Research and Manufacturers of America
Silicon Valley Leadership Group
Oppose Unless Amended
Advanced Medical Technology Association
Alliance of Automobile Manufacturers
American Chemistry Council
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California Dental Association
Department of Defense
Western State Petroleum Association