October 11, Debbie Raphael Director, Dept. of Toxic Substances Control P.O. Box 806 Sacramento, CA

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Dinah Harper
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October 11, 2012 Debbie Raphael Director, Dept. of Toxic Substances Control P.O. Box 806 Sacramento, CA 95812-0806 Re: Safer Consumer Products Draft Regulations Dear Director Raphael: Sierra Club

1 October 11, 2012 Debbie Raphael Director, Dept. of Toxic Substances Control P.O. Box 806 Sacramento, CA Re: Safer Consumer Products Draft Regulations Dear Director Raphael: Sierra Club California strongly supports the Department of Toxic Substances Control (DTSC) proposed regulations on Safer Consumer Products (SCP) and urges its swift adoption. California needs protection from dangerous exposure to toxic chemicals in products and must not delay such important environmental and public health safeguards. We appreciate the time, efforts and careful consideration that you and your staff have put into drafting the regulation. There are more than 100,000 chemicals currently in commerce and more than 2,000 new chemicals are added each year. Existing laws do not adequately protect the environment and consumers from unnecessary exposure to toxic levels of these chemicals. According to the Berkeley Center for Green Chemistry, health care costs for California s children and workers from chemical and pollution-related diseases exceed $2 billion per year. Preventable chronic illnesses, developmental and behavioral disorders such as ADHD, infertility, cancer and birth defects are linked to exposure to harmful toxins in products. The harm does not just end with consumers. Dangerous substances from products will make their way to the environment where they pollute our water and harm wildlife. Local governments are usually tasked with water treatment and cleanup efforts that costs taxpayers billions of dollars each year. Sierra Club California strongly supported the 2008 enabling legislation that required the SCP regulation. The legislation aimed to address single-chemical ban proposals at the legislature and received support and collaboration from environmental groups, public health advocates, and the chemical industry. When it was enacted, we were confident that our collaboration would result in smart rules and that the industry would continue to support the effort. Since then, there have been delays and industry efforts to weaken the law. Finally, after four years of regulatory process, we are about to see the bill implemented through the new SCP regulations. We anticipate that there will be no further delays that would require us to seek further legislative action to ensure that consumers and the environment are protected from toxics in products. 801 K Street, Suite 2700, Sacramento, CA (916) Fax (916)

2 We commend DTSC staff for the many positive aspects in the latest iteration of the regulations and support the department s plan to move forward with implementation. The regulations are scientifically sound and are consistent with the feedback from that DTSC has received from its science panel. Below is a list of positive highlights and suggested amendments to strengthen the regulation. Sierra Club California strongly supports the following elements in the regulation: 1. A comprehensive list of Chemicals of Concern (COC). The regulation currently includes a list of 1300 COCs drawn from existing lists prepared by respected government, scientific and regulatory bodies that identify chemicals that are known to be harmful. The list provides the necessary signal to the market that the state expects stewardship for hazardous chemicals. A comprehensive list will also help avoid regrettable substitutions. However, for the list to be most effective, it must also include chemicals hazardous to the environment in addition to those posing public health threats. 2. There is noteworthy effort in capturing environmental endpoints and impacts. We appreciate the focus on the natural environment in the definitions of environmental impact. Capturing environmental endpoints such as wildlife, wetlands, and watersheds or larger ecosystems will ensure that we address products that contain chemicals harmful to the natural environment. 3. End-of-life Product Management. The automatic requirements for end-of-life management are crucial to ensure proper handling of priority products at the end of their useful life. These requirements will also encourage manufacturers to incorporate innovation into their designs to create greener products. 4. Regulatory Response Selection Principles. By including the Regulatory Response Selection Principles in the regulatory response process, the Department can support innovation and alternatives that promote protection for the environment and human health. We strongly support criteria that emphasize alternatives that will achieve the best results in limiting impact, exposure and pollution and do so in a timely manner. 5. Assessor Certification. The proposed third-party assessor certification program will help ensure quality information received from manufacturers and responsible parties. This will also enhance the likelihood of acceptable and unbiased alternative assessments. Sierra Club California urges that the following amendments be made to improve the proposed regulation. 1. Increase the number of products addressed within the first three years of implementation ( ). Implementation of the regulations should be robust to meet expectations established by the enabling legislation, retain public support, and protect the environment and public health. The current plan to address no more

3 than five priority products during the initial phase of implementation suggests this is a pilot program, rather than the protective program the legislature intended. A ramp up during the first year of implementation could be reasonably expected, but after that first year, the program should be fully implemented and address more products. We urge DTSC to revisit its plan for implementation to help avoid the need for additional legislative action. 2. Improve the public involvement process. The implementation process should be transparent, and offer more information and opportunities for the public to provide comments before key decisions are made. Below are some specific suggestions: a) Public input should be solicited prior to initial release of Priority Product List and Work Plan. The Department should also seek comments on the Alternative Assessment (AA) Work Plans in parallel with DTSC review. Comment periods should be 45 days minimum. b) In the list of documents that DTSC will make available online, all public comments should be included should be modified to include public comments on work plans (referenced on page 39, line 2 to 3). c) Additionally, the Department should revise the wording in , page 47 line 14, from presented in matrix to summarized in matrix. In its present form, a matrix will not provide enough information to the public and stakeholders therefore should only be used as a way to summarize key points and additional information to be linked. 3. Problematic omission of the Water Board/EPA 303(d) list from the List of Lists ( ). The list of chemicals of concern does not include the most common environmental contaminants that pollute our water and harm habitat. By adding the 303(d) list, DTSC will ensure the regulations capture those pollutants. The Water Board/EPA 303(d) list is the list of impaired water bodies and the chemicals impairing them in the state of California. It is congruent with the Department s Statutory Intent and Requirement as it is reliable and readily available information that is scientifically sound. Even though the list appears under the definition of adverse water quality impacts, it also needs to be added to the List of Lists and the chemicals to the list of COC. 4. Remove incentives to hide data ( ). Prioritizing products based on availability of information will incentivize the practice of hiding data and discourage manufacturers and responsible parties from publishing scientific studies on chemicals. 5. Exposure pathways must be identified in the Preliminary Alternative Assessment Report ( ). A major reason consumer products pollute the environment is that manufacturers are unaware of environmental exposure pathways. DTSC should require the elements of (g) to be included in the Preliminary AA report work plan.

4 6. Need to increase the number of components in highly durable products regulated every three years ( ). As currently written, DTSC will only focus on 10 components in each manufactured product that is considered highly durable every three years. This set maximum will further delay implementation and weaken the program. A durable product, as noted in the regulation, could contain 100 or more components and each of those components can represent a pollution source. Some products may have thousands of components and by addressing only 10 components every three years, it will take decades for safer alternatives to appear on the market. We recommend that DTSC set a maximum percentage of components in each manufactured product that can be regulated every three years as a compromise that will protect manufacturers, consumers and the environment. 7. Timeline should be tightened to reduce the amount of time from now until safer products are on shelves ( ). The level of flexibility in might result in delays. Preliminary AA Reports should not be submitted more than 180 days after a product is listed as a Priority Product except in very rare circumstances. Safer products need to be available to consumers soon and not years from now. We recommend that DTSC establish narrow criteria for allowing extensions of the timeframes specified in the regulations under exceptional circumstances. 8. More consideration needed for environmental impact and costs to other agencies, organizations and companies in the Regulatory Response Selection Principles ( 69506). a) When identifying administrative and other costs associated with safer consumer products, DTSC should also take into consideration the burden placed on other government agencies and organizations such as the Department of Parks and Recreation, the Department of Fish and Game, non-profit land stewardship organizations, and companies that manage wastes. On page 52 lines 22 to 23 should include other government agencies, nonprofit organizations, other private businesses. b) In addition, the negative impacts to the natural environment should be considered throughout the regulation and especially as part of the Regulatory Response Selection Principles. The principles were set up to provide guidelines on how DTSC will select regulatory responses therefore it would be important for the Department to stress environmental impact as part of the list of principles. On page 52 lines 24 to 25, the wording should be modified to read upon sensitive subpopulations and ecosystems. 9. The Regulatory Response Selection Principles ( 69506) should specify that the Department will seek timely protection for human health and the environment. As mentioned in our previous points, timeline is a concern for Sierra Club California. We would like to see safer consumer products be placed in commerce as soon as possible before worse pollution and more illnesses occur. This sentiment needs to be conveyed in as one of the main guiding principles for selecting regulatory responses.

5 10. End-of-life management plan needs input prior to approval ( ). We urge that DTSC solicit public comments on proposed product stewardship plans to ensure transparency and effective waste management from manufacturers. This should be done prior to approving the plan and all information should be posted online and available to the public. 11. Remove exemptions for historic products ( ). According to the Initial Statement of Reason, DTSC clarified that historic products will be exempted from the regulations because even though they still exist, they are no longer in production. This blanket exemption should not be made without further evaluation on public and environmental health threats from the product, part of the product and its components. The Department should strike this definition out of the regulation and make these considerations when developing product-specific regulatory responses, using the established principles. Thank you for the opportunity to provide these comments. We strongly support the regulations and feel that they will move us in the right path to safer consumer products. Sincerely, Annie Pham Policy Advocate

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