TERU Focus Report - CEPC Hearing on DTSC Regs

The California Environmental Policy Council (CEPC) was convened on October 27, 2010; Teru Talk previously reported here on the ongoing public process last week. We submitted formal comments  to the CEPC and I presented testimony at the public hearing. Under consideration, as mandated by the Assembly and Senate laws initiating this Green Chemistry Initiative: Should the CEPC require a "multimedia evaluation" of the Department of Toxic Substances Control (DTSC) proposed Regulation for Safer Consumer Products? To put it another way, should the CEPC consider the economic as well as environmental impacts on California businesses by the draft regulations?
 
CEPC's charge was to assess the potential for collateral damage associated with the structure of the regulations, whether CEPC should "conclusively determine that the regulation will not have any significant adverse impact on public health or the environment." Twelve members of the public presented testimony at the podium during the hearing, splitting evenly for and against the proffered draft Resolution that there was no significant adverse impact. The implementation mechanisms with be heard in a separate public hearing scheduled for November 1, 2010, and separate comments are requested for that DTSC meeting. 

In her opening remarks, California Environmental Protection Agency Secretary and CEPC Chair Linda S. Adams referred to a statement made by Governor Schwarzenegger on toxic chemical control before the Legislature, that California needed a scientific basis that provides both economical and environmentally sound approaches.

Secretary Adams discussed concerns expressed in submitted comments, including reference to our own submission querying inclusion of socio-economic considerations. Despite received comments and the Governor's statement, CEPC chose NOT to consider those economic impacts of the proposed DTSC regulatory structure toward their mandated determination, leaving such matters to the future per chemical assessments of the DTSC. During Council discussion, a specific example was offered as to how economics would be addressed during implementation. The issue of specific "Product Bans" was brought forward, noting that the regulations proposed such bans only when a safer alternative was available, and both technologically and economically feasible.

 
After all, the California Environmental Quality Act (CEQA) notoriously lacks the mandate for socio-economic analysis present in the federal equivalent, the National Environmental Protection Act (NEPA). The Council's own Legal Counsel clarified that CEPC's actions are considered "separate from CEQA", and not a "CEQA Equivalent" determination as State Water Quality Control Board findings are. Counsel also addressed their interpretation of what constituted "conclusive determination", indicating that if a majority of the Members agreed to not demand multimedia evaluation of impact, that was "conclusive" enough.
 
Comments received by CEPC had pointed out two structural defects in the proposed regulations: (1) the level of disclosure of proprietary information seemed to be "unbounded", and tell what will be asked, but not of whom; and (2) the mandated disclosure was a strong disincentive for any firm to want to sell products in California. Council members indicated that DTSC's model for protection of proprietary information had been drawn in large part from that employed by the Department of Pesticide Regulation, whose "products of purview" are exempt from the DTSC's Green Chemistry Laws. Public comment responded to this reference repeatedly, noting that such protection took time and money, things that our emerging Green Chemistry companies find in short supply, compared to the companies manufacturing the very products that these regulations hope to displace.
 
Those recommending no further evaluation expressed the desire for the process to move faster, not slower, and offered that the implementation would take care of the apparent inequities. The clear need for better chemicals and safer products, the hazards to the public health and environment, and the give-and-take nature of the actual regulatory language development were offered as the logical reasons to rapidly move forward.
 
Arguments recommending that the Council could NOT "conclusively" make a determination that no significant impact would accrue from the structure of these proposed regulations repeated that ANY CONSUMER PRODUCT could fall under the scrutiny of the DTSC, and be liable for pressure to reformulate: airplanes and container vessels, road coatings and building materials sold in California, along with the high-volatile chemicals, unsafe toys and BPA-emitting plastic wrap already considered the primary targets. The new regulations would apply to any consumer product, except those produced by companies that have already fought and won exemptions.

 

The Resolution was passed unanimously by the Council, with the Secretary's request that all remaining concerns be brought before the DTSC in writing and at the hearing, November 1, 2010. Thus after two hours, both the Resolution, and the Buck, were "conclusively" passed.