1. Clean Water Act Section 303(d)

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1 Department of Toxic Substances Control Attention: Krysia Von Burg, Regulations Coordinator P.O. Box 806 Sacramento, CA October 10, 2012 Subject: Proposed Safer Consumer Products Regulations (Dept. Reference No. R , File No. Z ) Dear Ms. Von Burg: On behalf of the State Water Resources Control Board (State Water Board) and the Regional Water Quality Control Boards (Regional Water Boards), we are submitting these comments on the Department s proposed Safer Consumer Products regulations. We generally support the most recent proposal and wholly support the overarching goals of the regulations, which aim to identify and prioritize chemicals of concern and promote safer alternatives. The State Water Board and nine Regional Water Boards are responsible for maintaining water quality in State waters to protect beneficial uses of surface and ground waters. As a result of discharges of chemicals available through ordinary commerce, we have found many water bodies in the State to be impaired pursuant to Clean Water Act section 303(d). The Clean Water Act requires us to prepare resource-intensive plans to restore the beneficial uses of these waters, and programs to implement these plans are extremely expensive, both for us and for the regulated community. For many pollutants of concern, end-of-pipe treatment of wastewater and stormwater is not only prohibitively expensive, but technologically infeasible. The proposed Safer Consumer Products regulations have great potential to reduce public and environmental exposure to harmful and unnecessary chemicals. As explained below, we believe the regulations could go further in addressing water quality concerns. 1. Clean Water Act Section 303(d) The 303(d) List should be added to the Safer Consumer Products regulations. Federal Clean Water Act section 303(d) requires that the Water Boards assess water quality data for California s waters every two years to determine if they contain pollutants in excess of water quality standards. The resulting list is based on actual water quality data and sets forth California s highest water quality priorities. The list is consistent with the Chemical List Criteria of the Safer Consumer Products Initial Statement of Reason (pg. 60, Initial Statement of Reason).

2 - 2 - Recommendation: Add the 303(d) List to the regulations under section (a), Chemicals of Concern Identification (pg. 21, line 21). 2. Emerging Concerns In previous comments dated March 14, 2012, the State Water Board suggested adding the publicly reviewed Chemicals of Emerging Concern list generated by a scientific panel in accordance with the State Water Board s Recycled Water Policy. 1 We reiterate that comment and further suggest adding the Chemicals of Emerging Concern list generated by a second scientific panel for freshwater, coastal, and marine ecosystems. 2 If not sufficiently controlled, chemicals of emerging concern may become major drivers of future water quality impairment. The Safer Consumer Products regulations should anticipate and prevent future water quality problems. These Chemicals of Emerging Concern lists are consistent with the Chemical List Criteria of the Safer Consumer Products Initial Statement of Reason (pg. 60, Initial Statement of Reason). Recommendation: Add the Chemicals of Emerging Concern lists generated for the State Recycled Water Policy and for freshwater, coastal, and marine ecosystems to the regulations under section (a), Chemicals of Concern Identification (pg. 21, line 21). 3. Alternatives Analysis Threshold Exemptions We support the Department s approach to the exemption in section (c), Alternatives Analysis Threshold Exemption (pg. 31, line 29). The proposed threshold is based on a chemical concentration by weight to be specified for each priority product, and not a scientifically baseless one-size-fits-all percentage. Different pollutants and different products have different potencies. The case-by-case language allows for variations in product usage and environmental sensitivities. 4. Initial Priority Products Please modify the regulations to better address non-human environmental pollution, including serious water quality concerns. As currently drafted, the proposed regulations postpone consideration of some of the highest priority water quality problems in the State (e.g., copper, nickel, phosphates, nitrates, selenium, boron). For the first few years, chemicals selected as initial priorities must meet both human health and environmental criteria. This approach excludes many water pollutants because, although they may pose significant water quality threats, they often pose few human health risks. Selecting one of the five initial priority products to address a purely water quality threat would better illustrate the applicability and benefits of these regulations. As currently written, the proposed regulations identify two groups of Chemicals of Concern. The first group includes chemicals exhibiting one or more hazard traits (i.e., carcinogenicity, reproductive toxicity, mutagenicity, developmental toxicity, endocrine disruption, neurotoxicity, or bioaccumulative toxicity); the second group includes chemicals on exposure indicator lists for water quality, air quality, or biomonitoring. The 303(d) list and Contaminant of Emerging 1 2 ftp://ftp.sccwrp.org/pub/download/documents/cecpanel/cecmonitoringincarecycledwater_finalreport.pdf ftp://ftp.sccwrp.org/pub/download/documents/technicalreports/692_cececosystemspanelreport_final.pdf

3 - 3 - Concern lists could conceivably be added to either group, under section (a)(1) or section (a)(2), Chemicals of Concern Identification (pg. 21, line 24, and pg. 22, line 24), because the chemicals on these lists are generally toxic, bioaccumulative, or have otherwise demonstrated specific hazard traits in water. Several alternatives strategies exist for the Department to select an initial priority product based solely on its water quality implications. Recommendation: Add the 303(d) list and the Chemicals of Emerging Concern lists generated for the State Water Board s Recycled Water Policy and for freshwater, coastal, and marine ecosystems to section (a)(1), Chemicals of Concern Identification (pg. 21, line 24). Recommendation: Alternatively, add these lists to section (a)(2), Chemicals of Concern Identification (pg. 22, line 24), and modify section (g), Process to Evaluate Products Using the Prioritization Factors (pg. 29, line 5) as shown below: (g) Initial Priority Products List(s). Prior to January 1, 2016, the Department may list a product as a Priority Product only if the product is being listed on the basis of one or more Chemical(s) of Concern in the product that meet both two of the following criteria: (1) The chemical meets one or more of the criteria specified in subsection (a)(1) of section ; and (2) The chemical meets one or more of the criteria specified in subsection (a)(2) of section ; or (3) The chemical is on the Clean Water Act 303(d) list of impaired water bodies or a Chemicals of Emerging Concern list generated for the State Water Board s Recycled Water Policy and for freshwater, coastal, and marine ecosystems. 5. Transparency and Public Involvement Please strengthen opportunities for transparency and public involvement. We applaud your approach to balancing intellectual property rights with the need to identify chemical product exposure pathways. Lack of access to chemical data, coupled with few mechanisms to remove harmful chemicals from the marketplace, has led to health and environmental harm. Regulatory transparency, including opportunities for public involvement, will be crucial to the success of your program. Innovation thrives when information is clear and available. Effective pollution problem-solving can be compromised when exposure pathways to surface waters are overlooked. Explicit identification of exposure pathways through a simple conceptual model early in the process, coupled with public participation, could help ensure that all exposure pathways are identified and none are omitted. As written, this information would not be available until the Final Alternative Analysis is completed and public opportunities to influence the process are more limited. Similarly, public participation in the development of work plans and stewardship plans will ensure that the best ideas are considered and implemented. For example, the California

4 - 4 - Department of Resources Recycling and Recovery is inviting public input on its carpet and paint product stewardship plans. Recommendation: Require a simple conceptual model with the Preliminary Alternatives Assessments work plans under section , Alternatives Analysis: First Stage (pg. 41, line 10). Recommendation: Include a formal public comment period under section , Alternatives Analysis: First Stage (pg. 41, line 10), and for any significant work plan revisions. Recommendation: Invite input from State and local government agencies and the public prior to approving stewardship plans under section (a)(2)(A), End-of-Life Management Requirements (pg. 58, line 1). Recommendation: Include the following in section , Availability of Information on the Department s Website (pg. 18, line 42): All documents related to the three recommendations above. All materials cited in section (h), Alternative Analysis General Provisions (pg. 39, line 1), and related public comments and correspondence with interested parties. Proposed stewardship plans prepared pursuant to section (a)(2)(A), End-of-Life Management Requirements (pg. 58, line 1), not only final plans. 6. Costs Please expand the assessment of the economic impact of the proposed regulations. As written, the findings do not assess the financial impacts on communities exposed to unregulated chemicals. Ecological impacts are difficult to anticipate and their costs are difficult to estimate, but the costs are real and significant. When such expenses are borne by government agencies, they are often over-looked. In 2001, U.S. EPA estimated that the average cost to develop solutions for any of the roughly 20,000 impaired water bodies was about $52,000 (the range was $26,000 to $500,000). 3 These figures do not include implementing the solutions, which is far costlier, and costs are rising. The future costs of addressing emerging contaminants could be greater still. Prevention efforts, such as those outlined in the proposed regulations, will be far more cost effective. However, to demonstrate this, the full costs of environmental cleanup efforts must be considered. Recommendation: Consider more deeply the costs associated with mitigating water pollution impacts after they occur under section (a)(2)(C), Alternatives Analysis: Second Stage, Economic Impacts (pg. 43, line 28). Recommendation: Address water pollution control costs not only in the Alternative Analysis but also in regulatory decision-making. Add language to section , Priority Products Prioritization Factors (pg. 25, line 20), and section 69506(c), Regulatory Response Selection 3

5 - 5 - Principles (p.52, line 15), to consider the costs sustained by government agencies, publicly owned treatment works, non-profit organizations, and private businesses that handle wastes and oversee environmental clean-up efforts. 7. Schedule To make the most of the new regulations, regulatory timeframes should be as short as possible. As written, there is no timeline for the regulatory response process and too much flexibility to extend the process. We hope the Department can avoid drawn-out phase-outs of chemicals contributing to health and environmental harm. The regulations should include specific findings to justify any flexibility provided to extend a schedule. Recommendation: Make timely action a priority by including a timeline in section 69506, Regulatory Response Selection Principles (pg.52, line 6). Thank you for this opportunity to offer our input regarding the Safer Consumer Products regulations, and for your hard work and persistence in drafting these regulations. They represent a critical step in chemical policy reform. Because the regulations represent the first comprehensive state effort to find and require safer alternatives, they will likely become a national model. We appreciate your responsiveness to our concerns, and we are confident that the Safer Consumer Products regulations will greatly benefit water quality throughout the State. If you have any questions, please contact Dylan Garner at (510) or by at dgarner@waterboards.ca.gov. Sincerely, Thomas Mumley Assistant Executive Officer