Safer Consumer Products Program Releases Alternatives Analysis Guide – Comments Due October 23, 2015
Thu Oct 8th, On Environmental Law, by Bick Law LLP
The California Safer Consumer Products (“SCP”) program released the Draft Stage 1 Alternatives Analysis Guide (“AA Guide”) for comments. The AA Guide provides tools and examples of how to fulfill the first stage AA required by the SCP regulations. The AA guidance is an advisory resource. It is not a regulatory document or legal standard. Comments are due to Department of Toxic Substances Control (“DTSC”) before noon on October 23, 2015.
DTSC established the Green Chemistry Initiative in 2007 to provide a framework for understanding and reducing the impacts of products containing toxic chemicals in the state. The SCP is a key part of the State’s Green Chemistry Initiative.
The first stage of the AA involves an initial screening of alternatives with a preliminary analysis to identify the legal, functional, and performance requirements of the Priority Product and Chemical of Concern and uses this information to identify and screen alternatives to consider. When the first stage is completed, the responsible entity documents the analysis findings in a Preliminary AA Report, and submits that report along with a Work Plan for completing the AA to the DTSC. The steps in the first stage of the AA are:
Step 1: Identify product requirements & function of Chemicals of Concern, including determining the necessity of the Chemical of Concern and the safety of the Chemical of Concern.
Step 2: Identify alternatives.
Step 3: Identify factors relevant for comparing alternatives, including factors that have a material contribution to one or more adverse impacts and a material difference in contribution to such impacts between the Priority Product and alternatives.
Step 4: Initial evaluation and screening of alternative replacement chemicals.
Step 5: Consider additional information, including economic impacts.
Step 6: Preliminary AA Report.
During the second stage AA, the responsible entity follows the approved work plan from the first stage AA and compares the Priority Product with the identified alternatives. The second AA stage contains an in-depth analysis that refines the relevant factors and product function descriptions of the first stage and expands the analysis to consider additional impacts, including life cycle and economic impacts. DTSC anticipates publishing AA Guide for the second stage of the AA analysis in the first quarter of 2016.
When the Alternatives Analysis process is complete, the responsible entity may be required to select an alternative chemical ingredient or alternative product design or may be allowed to retain the existing product-chemical combination with certain restrictions. The restrictions could include any of the following:
- Supplemental information and regulatory response revisions.
- Product information for consumers.
- Use restrictions on chemicals and consumer products.
- Product sales prohibition.
- Engineered safety measures or administrative controls.
- End-of-life management requirements.
- Advancement of Green Chemistry and Green Engineering through research grant funding.
One reason for the Alternatives Analysis process is to avoid “regrettable substitutions.” In 2006 the California legislature enacted a law to limit the concentration of lead in children’s jewelry, due to its neurotoxic effect on children. In order to comply with the law, some manufacturers substituted cadmium, a known carcinogen, to provide density in jewelry. The legislature then enacted changes to limit cadmium as well, in 2012. The goal of the SCP is to consider effects of existing chemicals and alternatives from a life cycle perspective, to products that design benign products and avoid unintended consequences from the outset.
The AA Guide provides information about:
- The two stages of the AA process.
- Approaches for conducting AA steps.
- Tools and methods that may be useful for specific steps in the analysis.
- Approaches for identifying and collecting needed data.
- Examples to illustrate steps in the analysis.
- Administrative requirements, including reporting requirements.
The AA framework specifies what must be included in the analysis and reports. However, the methods, approaches, and actions for completing the analysis and reports are up to the responsible entities. In addition, the AA steps need not be conducted in the sequence presented in the regulations, but the AA Reports must include all of the specified, required elements.
To summarize the AA process, responsible entities must: (1) describe the product requirements (functional, performance, and legal), (2) determine if the Chemical of Concern is necessary to meet those product requirements, (3) identify and evaluate potential alternatives to determine if they can fulfill the product’s functional, performance, and legal requirements, and (4) select an alternative or agree to regulatory action to keep the Chemical of Concern in the product.
Under the SCP, a Priority Product is a consumer product identified by DTSC that contains one or more listed Candidate Chemicals that have a hazard trait that can harm people or the environment. The Priority Products will be identified by DTSC in the context of a specific Candidate Chemical, triggering the Alternative Analysis for that product-chemical combination. On March 13, 2014, DTSC identified three product-chemical combinations. This initial Priority Products list is the first set of product-chemical combinations that DTSC will propose under the SCP regulations.
The initial Priority Products list incudes:
- Spray Polyurethane Foam (SPF) Systems containing unreacted diisocyanates
- Children’s Foam Padded Sleeping Products containing Tris(1,3-dichloro-2-propyl) phosphate or TDCPP
- Paint and Varnish Strippers, and Surface Cleaners with methylene chloride .
DTSC placed these products on the initial Priority Products list based on two criteria in the SCP Regulations: 1) the products have the potential to expose people or the environment to one or more Candidate Chemicals, and 2) this exposure has the potential to “contribute to or cause significant or widespread adverse impacts.”
Listing a product on the initial Priority Products list is only the second step of a four-step process that could eventually lead to DTSC implementing a regulatory response. The findings of each manufacturer’s (or responsible entity’s) AA report will ultimately determine what regulatory response, if any, DTSC may impose. The SCP regulations provide a range of regulatory responses, ranging from product labeling to sales prohibition.
The Alternative Analysis process employs a life-cycle assessment (“LCA”) perspective. LCA is a framework for understanding the cradle-to-cradle environmental impacts of products, processes, services, policies, and decisions. The LCA captures indirect or ancillary effects and supply chain effects, as well as direct effects. In addition the Alternatives Analysis looks at the end-of-life life cycle, primarily waste management processes. End-of-life analysis includes the transport and management of waste, as well as recycling, landfilling, combustion, and composting of waste. Within landfilling, the management of landfill methane gas, including possible capture and energy production, is critical to the environmental balance of the system. This analysis considers waste processing as a potential balance-changing life cycle process.
California derived inspiration and ideas from Europe where the LCA methodology has already been formalized (International Organization for Standardization 14040 series). From inventorying to impact assessment to application of results in sustainability and management assessment, the LCA framework has been improved, refined, and updated for both general and specific assessment of products, processes, and services.