BILL ANALYSIS
AB 1879
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1879 (Feuer)
As Amended August 20, 2008
Majority vote
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|ASSEMBLY: |47-29|(May 29, 2008) |SENATE: |24-13|(August 25, 2008) |
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|COMMITTEE VOTE: |7 -0 |(August 30, 2008) |RECOMMENDATION: |Concur |
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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
specified.
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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subpopulations);
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
information.
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
review.
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
specified;
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
specified;
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
specified.
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
processes;
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
specified;
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.
EXISTING FEDERAL LAW:
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
standards.
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.
EXISTING STATE LAW :
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
thereof.
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
chemicals."
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
proposal:
AB 1879
Identification and Prioritization of Chemicals of Concern
(Section 25252)
Alternatives Evaluation and Enforcement Authority (Section
25253)
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)
319-3965
FN: 0007741