ACC appeals California spray foam priority product designation
Methylene chloride paint strippers added to SCP program
The American Chemistry Council has filed an appeal to reverse a determination made by the California Department of Toxic Substances Control (DTSC) to designate spray polyurethane foam (SPF) systems as a priority product under the Safer Consumer Products program.
In a letter dated January 2, 2019 to the director of the DTSC, the ACC initiated the formal appeal process, reiterating a prior request for the agency to withdraw the designation.
Under the SCP scheme, manufacturers of designated product-substance pairs are required to either complete an alternatives analysis to determine if a safer replacement is available or to reformulate to avoid the substance’s use.
Last year California designated SPF systems containing unreacted methylene diphenyl diisocyanates (MDI) its second priority product. In 2017 the agency had announced children’s foam padded sleeping products containing flame retardants TDCPP or TCEP as the first product. However, as the marketplace had already phased the substances’ use out, this resulted in no notifications.
The designation of SPF systems has, however, been delayed by industry pushback. Last May, the ACC filed an informal protest regarding the listing. This temporarily halted the original September notification deadline.
The ACC argued that the DTSC should withdraw it because SPF systems do not meet the criteria for inclusion in the program. And it said the department had not adequately demonstrated the potential for significant or widespread adverse effect from their use.
In a September meeting with DTSC, the ACC proposed the agency enter into an enforceable consent agreement (ECA) instead to address concerns with the product.
DTSC urged the ACC to “accept the results of this comprehensive, objective regulatory process, and comply with the requirements”
But in December, the DTSC rejected the request and said it was not permitted under the SCP Regulation to enter into an ECA. In its response, it urged the ACC to “accept the results of this comprehensive, objective regulatory process, and comply with the requirements.”
This response prompted the ACC into filing their appeal which also reiterated the organization’s request for the DTSC to withdraw the priority product designation for SPF systems and to reconsider its view that it lacks the authority to enter into an ECA.
Entering an agreement, it said, “would be the most time- and cost-efficient solution, would allow the public an opportunity to participate through public comments and public hearings, and could produce an alternatives analysis as one possible outcome.”
A spokesman for ACC said it is offering a ‘reasonable and responsible path forward that helps the state achieve its public health objectives in a faster, simpler, and more collaborative manner’
The requirement for SPF manufacturers to notify the DTSC has been paused during the informal dispute process. The formal process will result in an additional stay, a spokesperson for the agency said.
Methylene chloride paint strippers
The ACC’s move on SPF came shortly after the state named methylene chloride to paint strippers the program’s third priority product, with their designation taking effect from 1 January. Manufacturers that sell these products in California must notify the state by 4 March, and then either begin the alternatives analysis process or reformulate.
The DTSC said that it took the step, in part, due to the US EPA’s failure to finalize a 2017 TSCA proposal to ban the products, which have been linked to dozens of deaths in recent years. The EPA signaled last May that it would finalize the ban “shortly”, but it has yet to do so.
In the meantime, NGOs have been putting pressure on retailers to halt the products’ sales, with many – including Lowe’s, Walmart and Home Depot – committing to doing so.
DTSC has also announced plans to address an alternative product – paint and varnish strippers containing N-methylpyrrolidone (NMP) by naming it a future priority product.