BILL ANALYSIS                                                                                                                                                                                                    

                                                                AB 1879
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        AB 1879 (Feuer)
        As Amended  August 20, 2008
        Majority vote
        |ASSEMBLY: |47-29|(May 29, 2008)  |SENATE: |24-13|(August 25, 2008)    |
        |          |     |                |        |     |                     |

        |COMMITTEE VOTE:  |7 -0 |(August 30, 2008)   |RECOMMENDATION: |Concur    |
        |                 |     |                    |                |          |

        Original Committee Reference:    E.S. & T.M.  

         SUMMARY  :  Requires the Department of Toxic Substance Control (DTSC)  
        to adopt regulations, as specified, to establish processes for  
        identifying, prioritizing, and evaluating chemicals of concern and  
        their potential alternatives.  Requires DTSC, in adopting  
        regulations, to prepare a multimedia life cycle evaluation, as  
        defined.  Requires DTSC to establish and appoint members to a Green  
        Ribbon Science Panel, which will take specified actions and advise  
        DTSC on science, technical and policy matters.  Establishes  
        procedures to exempt the public release of information that is  
        claimed to be a trade secret, as specified.   

         The Senate amendments  recast the provisions of the bill as heard by  
        the Assembly, as follows:
         1)Require DTSC, by January 1, 2011, to adopt regulations to  
          establish a process to identify and prioritize chemicals or  
          chemical ingredients in consumer products that may be considered  
          a "chemical of concern," in accordance with a review process, as  

           a)   Require DTSC to adopt regulations using an interagency  
             consultative process that includes public participation;

           b)   Establish a prioritization and identification process that  
             includes a consideration of specified factors (e.g., chemical  
             volume, exposure potential, potential effects on sensitive  


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           c)   Require DTSC 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); and,

           d)   Require DTSC to reference and use available information  
             from other nations, governments, and authoritative bodies that  
             have undertaken a similar chemical prioritization process,  
             stipulating that DTSC is not limited to using only such  

        2)Require DTSC, in adopting regulations, to prepare a multimedia  
          life cycle evaluation (evaluation), as defined, conducted by  
          affected agencies and coordinated by DTSC.  Require DTSC to  
          submit the regulations and the evaluation to the California  
          Environmental Policy Council (Council), established pursuant to  
          Public Resources Code, subdivision (b) of Section 71017 for  

           a)   Require the evaluation to consider the following impacts:   
             emissions of air pollutants, contamination of surface and  
             groundwater and soils, disposal or use of byproducts and waste  
             materials, worker safety and impacts to public health, and  
             other anticipated impacts to the environment;

           b)   Require the Council to review the evaluation within 90 days  
             following notice from DTSC 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 DTSC, as  

           c)   Require DTSC 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  

           d)   Require DTSC to conduct an interagency consultation when  
             coordinating the evaluation; and, 


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           e)   Authorize DTSC 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.

        3)Require DTSC, on or before January 1, 2011, to adopt regulations  
          to establish a process to evaluate chemicals of concern, and  
          their potential alternatives, in consumer products 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)   Require the regulations to 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)   Require the regulations to include life cycle assessment  
             tools that, at a minimum, take into consideration the  
             following: product function or performance; useful life;  
             materials and resource consumption; water conservation; water  
             quality impacts; air emissions; production, in-use, and  
             transportation energy inputs; energy efficiency; greenhouse  
             gas emissions; waste and end-of-life disposal; public health  
             impacts; environmental impacts; and economic impacts;

           c)   Require the regulations to specify a range of regulatory  
             responses that may result from the outcome of the alternatives  
             analysis, including at least the following: no action;  
             requiring additional information to assess a chemical of  
             concern and its potential alternatives; requiring labeling or  
             other product information; restricting the use of a chemical  
             of concern in a product; prohibiting the use of a chemical of  
             concern in a product; controlling access to or limiting  
             exposure to a of concern in a product; requiring a  
             manufacturer to manage a product at the end of its useful  
             life; requiring the funding of green chemistry where no  
             feasible safer alternative exists; and other requirements  
             determined by DTSC; and,

           d)   Require DTSC to ensure that the tools used in this process  
             allow for an ease of use and transparency of application, as  

        4)Require DTSC, prior to July 1, 2009, to establish and appoint  


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          members to a Green Ribbon Science Panel, with expertise that  
          includes fifteen disciplines (chemistry, environmental law,  
          nanotechnology, maternal and child health, etc.), according to  
          public meeting laws and procedures, as specified.

           a)   Authorize the panel to take various actions to advise DTSC  
             and the council on science and technical matters for reducing  
             adverse health and environmental impacts of chemicals used in  
             commerce, encouraging the redesign of products, manufacturing  

           b)   Authorize the panel to assist in developing green chemistry  
             and chemicals policy recommendations and implementation  
             strategies; and, 

           c)   Authorize the panel to advise DTSC on the adoption of  
             regulations and on priorities for which hazard traits and  
             toxicological end-point data should be collected.

        5)Establish procedures to protect and exempt from public release  
          information provided to DTSC that is claimed to be a trade  
          secret, as specified. 

           a)   Authorize a person providing information pursuant to this  
             article to identify a portion of the information submitted to  
             DTSC as a trade secret, with procedures and details as  

           b)   Prohibit a state agency from releasing to the public  
             information provided pursuant to this article that is a trade  
             secret and that is so identified;  

           c)   Authorize public agencies to exchange a properly designated  
             trade secret, as specified, if the trade secret is relevant  
             and necessary to exercise the agencies' jurisdiction; 

           d)   Require DTSC, upon a request for the release of information  
             that has been claimed to be a trade secret, to immediately  
             notify the person who submitted the information; 

           e)   Require DTSC, within 30-60 days, to determine whether or  
             not the information claimed to be a trade secret is to be  
             released to the public and sets requirements and timelines for  
             action thereof;


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           f)   Require DTSC, if it decides that the information requested  
             pursuant to this subdivision should be made public, to provide  
             the person who submitted the information 30 days' notice prior  
             to public disclosure of the information, unless, prior to the  
             expiration of the 30-day period, the person who submitted the  
             information obtains an action in an appropriate court for a  
             declaratory judgment that the information is subject to  
             protection under this section or for a preliminary injunction  
             prohibiting disclosure of the information to the public and  
             promptly notifies DTSC of that action; and, 

           g)   Provide that hazardous trait submissions for chemicals and  
             chemical ingredients are not subject to the trade secret  
             protections in this bill.  

        6)Stipulate that no reimbursement is required by this act for costs  
          that may be incurred by a local agency or school district.

        7)Provide that AB 1879's enactment is contingent upon the enactment  
          of SB 509 (Simitian) of the 2007-08 Regular Session.


         1)Declares, under the Toxic Substances Control Act of 1976 (TSCA),  
          that adequate authority should exist to regulate chemical  
          substances and mixtures that present an unreasonable risk of  
          injury to health or the environment.  
        2)Declares, under the Consumer Product Safety Act (CPSA), that the  
          public should be protected against unreasonable risks of injury  
          associated with consumer products.  Authorizes the Consumer  
          Product Safety Commission to promulgate consumer product safety  

        3)Requires, under the Federal Hazardous Substances Act (FHSA), that  
          certain hazardous household products bear cautionary labeling to  
          alert consumers to the potential hazards that those products  
          present (such as toxic, corrosive, flammable or combustible) and  
          to inform consumers of the measures they need to take to protect  
          themselves from those hazards.

        1)Requires, under the Safe Drinking Water and Toxic Enforcement Act  
          of 1986 (Proposition 65), the Office of Environmental Health  


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          Hazard Assessment (OEHHA) to publish a list of chemicals known to  
          cause cancer or birth defects or other reproductive harm. 
        2)Prohibits the knowing and intentional exposure of people to a  
          chemical known to the state to cause cancer or reproductive  
          toxicity without first giving clear and reasonable warning.

        3)Prohibits the manufacture, sale and distribution in commerce of  
          certain consumer products that contain specific toxics, including  
          PBDEs, lead and phthalates, as defined.

        4)Authorizes DTSC to regulate, among other things, 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. 

        5)Authorizes the Department of Public Health to regulate, among  
          other things, solder in plumbing fittings or fixtures containing  
          lead; toys containing lead; tableware containing lead or cadmium;  
          PBDEs; and toys and childcare articles containing phthalates.

        6)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. 

         AS PASSED BY THE ASSEMBLY  , this bill authorized DTSC to regulate  
        consumer products containing specified chemicals (phthalates,  
        mercury, lead, cadmium, arsenic, polybrominated diphenylethers  
        (PBDEs), and hexavalent chromium) and established requirements  

         FISCAL EFFECT  :  Unknown.  

         COMMENTS  :  

         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  


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        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.

        The author contends that 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.

         What is Green Chemistry  ?  Green Chemistry, as defined in Green  
        Chemistry: Theory and Practice, is, "?the utilization of a set of  
        principles that reduces or eliminates the use or generation of  
        hazardous substances in the design, manufacture and application of  
        chemical products."  For the last century, environmental protection  
        has concentrated on capturing and storing hazardous waste.  Green  
        Chemistry is a fundamentally new approach to environmental  
        protection, transitioning away from managing toxic chemicals at the  
        end of the lifecycle, to reducing or eliminating their use  
        altogether.  Green chemistry encourages cleaner and less-polluting  
        industrial processes, while creating new economic opportunities in  
        the design and use of chemicals, materials, products and processes.

         Need for Comprehensive Chemical Policy :  According to DTSC, despite  
        landmark environmental and occupational legislation in the 1970s,  
        including passage of the federal Toxic Substances Control Act  
        (TSCA) in 1976, many experts have concluded that chemicals policy  
        in the U.S. has not been sufficiently protective of human health or  
        the environment, nor has it promoted innovation in the chemicals  
        market. There continue to be substantive gaps in understanding  
        about the health and environmental effects of the great majority of  
        the 83,000 chemical substances listed in the TSCA Inventory.  The  
        U.S. EPA's voluntary High Production Volume Challenge has made  
        limited progress in improving information on chemicals, which are  
        produced or imported at more than one million pounds per year.   
        Global chemical production, meanwhile, continues to grow at about  
        3% per year, doubling every 25 years.  Many of these substances  
        come in contact with people - in the workplace, in homes, through  


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        the use of products, and through air, water, food and waste streams  
        - and many of them enter the earth's finite ecosystems at some  
        point during their lifecycle.

         The California Green Chemistry Initiative  :  Last year, the Governor  
        called for the creation of a Green Chemistry Initiative stating  
        that "a comprehensive and unified approach is needed to ensure  
        good, accountable policy" and "I encourage the legislature and all  
        interested parties to participate in the development of this  
        important initiative." Linda Adams, Secretary of Cal/EPA, directed  
        DTSC to develop the Initiative.  Goals of the Green Chemistry  
        Initiative include developing a consistent means for evaluating  
        risk, reducing exposure, encouraging less-toxic industrial  
        processes, and identifying safer, non-chemical alternatives.  

        Earlier this year, the Green Chemistry Initiative Science Advisory  
        Panel, which consists of scientists and other experts in the field,  
        presented options for the State to consider in order to advance  
        Green Chemistry concepts.  While AB 1879 addresses many of the  
        Panel's recommendations, it particularly focuses on the following  
        options, "Advance the science of alternatives assessment; Adopt a  
        policy to identify chemicals of concern, including, as appropriate,  
        associated processes and approaches, and develop specific criteria  
        for this purpose; Target chemical uses of concern based on hazard,  
        exposure and risk; Require product manufacturers and importers in  
        California to disclose chemical ingredients; Require chemical  
        makers and users to systematically identify and consider safer  
        alternatives; and Authorize Cal/EPA to phase out hazardous  

        AB 1879, together with SB 509 (Simitian), carries the  
        Administration's Green Chemistry proposal for this legislative  
        session.  The two bills incorporate the following provisions of the  

         AB 1879

                Identification and Prioritization of Chemicals of Concern  
             (Section 25252)
               Alternatives Evaluation and Enforcement Authority (Section  
               Multimedia Lifecycle Assessment (Section 25252.5)
               Green Ribbon Science Panel (Section 25254)
               Trade Secrecy (Section 25257)


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        SB 509

                Definitions and Exemptions (Section 25251)
               Toxics Information Clearinghouse (Sections 25256, 25256.1,  
             25256.2, and 25256.3)

         Follow-up legislation  :  While it is the intent of the authors to  
        establish an effective, comprehensive chemical policy program and  
        to authorize DTSC to effectively regulate chemicals in consumer  
        products in order to protect public health and the environment,  
        should these bills be signed into law, the Legislature may wish to  
        consider follow-up legislation that includes: more clearly and  
        explicitly defining DTSC's authority to regulate chemicals in  
        consumer products and authority to enforce those regulations,  
        conflict-of-interest provisions for the Green Ribbon Science  
        Advisory Panel process, legislative appointments to the Panel,  
        trade secret provisions that ensure protection of public health and  
        the environment, and ensuring expedient and efficient action on  
        chemicals and products that may pose imminent public health or  
        environmental hazards.  

         Analysis Prepared by  :    Shannon McKinney / E.S. & T.M. / (916)  

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