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Holidays Come Early for California Chemical Makers

Contact: 
(510) 444-0973 x302
renee@ewg.org
For Immediate Release: 
Thursday, December 2, 2010

Oakland, Calif. -- In September 2008, Gov. Arnold Schwarzenegger celebrated the signing of two bills that, he said, would propel “California to the forefront of the nation and the world with the most comprehensive Green Chemistry program ever established.” He promised that once the legislation went into effect, toxic chemicals would no longer become “inevitable byproduct of industrial production,” lowering the risk of exposure to synthetic chemicals for California’s people and the environment.

Fast forward two years: After countless public workshops, proposals and drafts of regulations, the reality is far from what the governor promised.

On Sept. 14, the California Department of Toxics Substances Control (DTSC) issued what it called close-to-final regulations for a 45-day public comment period. The draft regulations weren’t everything that many in the environmental and public health community had hoped for, but they represented at least a small step toward limiting the threat posed by toxic chemicals in consumer products.

Then, at the eleventh hour, the Schwarzenegger administration and the toxics control department pulled a classic bait-and-switch maneuver.

Just two weeks after the deadline for comments had passed, the agency issued a revised set of regulations that essentially gutted the Green Chemistry program established by the two 2008 laws (AB 1879 and SB 509). The changes were made without notifying or seeking input from the public or even the Green Ribbon Science Panel, which the law established to advise DTSC in developing the regulations. What’s more, the agency gave the public only 15 days to comment on latest draft.

“The holiday gift-giving to the chemical industry started early this year, with the biggest one coming from Governor Schwarzenegger,” said Renée Sharp, EWG’s California director. “On the way out the door, he and his administration have taken what could have been a landmark program and gutted it.”

“I am deeply concerned by the last-minute weakening of the proposed Green Chemistry Program,” said state Senator Fran Pavley (D-Santa Monica). “The process by which the changes were initiated is itself suspect, but more importantly, the result is a step backward in chemical policy reform. The revised regulations fail to provide a mechanism for taking prompt action on many chemicals known to be hazardous, they fail to place any burden of proof on industry to show their products are reasonably safe, and they allow a veil of secrecy that will make any oversight by the public and the market virtually impossible. Californians deserve to be protected from the most hazardous chemicals that needlessly lurk in our everyday products. These revised regulations amount to a gentle nod to the chemical industry and a slap in the face to the people of California.”

“Governor Schwarzenegger has an opportunity here to craft a legacy of protecting Californians from exposure to toxics,” added Pavley. “I urge the governor to remain true to his commitment to safeguard the health and safety of Californians and the environment.”

If the new regulations go into effect without being fundamentally overhauled, Californians will be worse off than before: State legislators could point to the inept program as an excuse not to get involved in the issue, and state regulators would have their hands tied in knots by a program that is structured to fail.

The proposed regulations would also set a terrible precedent for the nation, because many aspects of the gutted California program are actually worse than the flawed and outdated federal 1976 Toxic Substances Control Act.

“Environmental Working Group is calling out this bait-and-switch ploy for what it is,” added Sharp. “We’re telling Gov. Schwarzenegger and the Department of Toxic Substances Control that they won’t get away with this dirty trick and calling on governor-elect Jerry Brown to stop the regulations from going forward once he takes office — unless they are radically revised once again to live up to the goals of California’s pioneering Green Chemistry laws once he takes office.”

More than a dozen public health and environmental public interest groups held a press conference in Sacramento today (Dec. 2) condemning the action.

Environmental Working Group has requested the California Department of Toxic Substances Control provide all records that led to the last-minute backroom deal. The text of the letter is below.

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EWG is a nonprofit research organization based in Washington, DC that uses the power of information to protect human health and the environment. http://www.ewg.org

Dec. 2, 2010

Attn: DTSC Public Records Coordinator

California Department of Toxic Substances Control

1001 “I” Street, Sacramento, CA 95812

Re: California Public Records Act Request

Dear Sir or Madam:

Environmental Working Group (EWG), Californians for a Healthy and Green Economy (CHANGE), Center for Environmental Health, Clean Water Action, Physicians for Social Responsibility – Los Angeles and Silicon Valley Toxics Coalition are filing this request under the California Public Records Act (Government Code § 6250, et seq.). Collectively, we represent more than 35 environmental health, policy, labor, environmental justice, and interfaith organizations that are working for better regulation of toxic chemicals in California.

On Sept. 14, 2010, the California Department of Toxic Substances Control (DTSC) submitted its Green Chemistry Proposed Regulation for Safer Consumer Products to the California Office of Administrative Law, triggering a 45-day public comment and formal rulemaking process. The public comment period ended Nov. 1, 2010.

On Nov. 16 – just two weeks after that deadline – DTSC issued a revised set of regulations that were fundamentally restructured to such a degree that they no longer fulfill the intent of AB 1879, the law that the regulations are designed to implement. Notably, these extensive changes were made without notifying or seeking input from the public or the Green Ribbon Science Panel, the advisory body created under the legislation.

Moreover, DTSC offered only a 15-day public comment period, which ends Dec. 3, despite the fact that even the California Chemical Industry Council describes the new regulations as “substantially revised.”

This action violates Government Code § 11346.8, which states that a 15-day public comment period may only be used if “the change is: (1) nonsubstantial or solely grammatical in nature, or (2) sufficiently related to the original text that the public was adequately placed on notice that the change could result from the originally proposed regulatory action.”

EWG and the organizations listed above are deeply troubled by both the drastic nature of the Nov. 16 revisions as well as the abrupt, non-transparent manner in which DTSC acted. We note that these actions are at odds with DTSC’s claim that it is “committed to an open and constructive communication process” and has a Public Participation program that is “nationally recognized as the most proactive example of its type for citizen involvement.”

Consequently, EWG, CHANGE and the other aforementioned organizations are seeking records of DTSC’s communications with non-governmental individuals and groups concerning this important policy issue. As part of that search, we request access to and copies of all records of communications between Sept.14, 2010 and Dec. 2, 2010 among DTSC and non-governmental individuals and groups regarding the Green Chemistry Proposed Regulation for Safer Consumer Products.

The term “records” is intended to include all documents and records of any kind, including but not limited to electronic records, records of meetings, e-mails and telephone communications in the control or possession of DTSC and its officials.

In particular, we request at a minimum the following types of records:

1. All shared or public calendar entries listing meetings with non-DTSC parties regarding the Green Chemistry Proposed Regulation for Safer Consumer Products between Sept. 14, 2010 and December 2, 2010.

2. All e-mails and other written correspondence between DTSC and non-DTSC parties regarding the Green Chemistry Proposed Regulation for Safer Consumer Products between Sept. 14, 2010 and Dec. 2, 2010.

3. Copies of any telephone logs that list conversations between DTSC employees and non-DTSC parties regarding the Green Chemistry Proposed Regulation for Safer Consumer Products between Sept. 14, 2010 and Dec. 2, 2010.

EWG, CHANGE and the other aforementioned organizations note that DTSC’s own Public Participation Manual states that “that the public has a right to information that affects its quality of life” and cites the Public Records Act, Government Code § 6250, et. seq., to wit: “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”

If DTSC believes that any portion of the information we have requested is exempt from disclosure under express provisions of the law, Government Code § 6257 requires that the exempt material be segregated and deleted so that the remainder may be released. We therefore request that if you determine that some portions of the requested records are exempt, you provide us with copies of the remainder of the records. We reserve our right to appeal any such deletions. In addition, if you determine that some or all of the requested records are exempt from release, kindly advise us as to which exemption you relied on for the material that you do not release.

Please note that the California Public Records Act allows agencies to charge for “direct costs of duplication” but cannot charge fees for the search, review or copy of records. If you plan to charge more than $100 in complying with this request, please notify me in advance. Electronic records are preferable where such a format exists.

As provided by the California Public Records Act, we will expect to receive a reply to this request within 10 working days. If any part of this request is unclear, please contact Renee Sharp at the number or e-mail address below. Thank you for your timely attention to this matter; we look forward to your prompt reply.

Sincerely,

Renee Sharp

California Director

Environmental Working Group

renee@ewg.org

510-444-0973 x 302

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