California tries to add new regulation for product under Green Chemistry law

A recent California case alleged that there was no evidence showing that the exposure of workers or individual citizens using spray foam systems exceeded any level necessary to support a claim of a potential for public exposure or for significant widespread negative impacts.

In the case of American Chemistry Council et al. v. Department of Toxic Substances Control et al., the Department of Toxic Substances Control issued a regulation listing spray polyurethane foam systems with unreacted methylene diphenyl diisocyanates as a priority product under California’s Green Chemistry law.

The trial court found that the department’s decision to list spray foam systems as a priority product was within its legal authority, that the department complied with the California Administrative Procedure Act (APA), and that the department violated the California Environmental Quality Act (CEQA).

The American Chemistry Council and the General Coatings Manufacturing Corp. appealed. They argued that listing spray foam systems as a priority product exceeded the department’s authority under the Green Chemistry law and under the Safer Consumer Products regulations. They also claimed that the department breached the APA in multiple ways. The department cross-appealed and challenged the trial court’s decision that it violated the CEQA.

The California Court of Appeal for the Fifth District agreed with the trial court’s decision that the department acted within its authority and within the APA’s requirements. However, the appellate court returned the case to the trial court with instructions to dismiss the claim as untimely under the CEQA’s statute of limitations.

First, the appellants alleged that the department lacked authority to list spray foam systems as a priority product without expressly considering the threshold level of what amounted to an exposure to the chemical.

The appellants argued that there was no evidence demonstrating that the exposure of workers or individual citizens using spray foam systems exceeded any level necessary to support a claim of potential public exposure or a potential for significant widespread adverse impacts.

The Court of Appeal rejected the appellants’ argument. The appellate court ruled that the statutes and regulations did not require the department to identify any threshold level of what amounted to an exposure to the chemical to prioritize a product.

Second, the appellants contended that the definition of spray foam systems was improper since it included products that were not consumer products, as required by the statutory and regulatory scheme. The appellants claimed that high-pressure foam systems were exclusively used by professional workers in commercial settings who were specifically trained in their use.

The Court of Appeal disagreed with the appellants’ argument. The appellate court held that a plain reading of the statutory definition showed that the department did not exceed its authority by selecting a definition that included high-pressure spray foam systems. The statutory definition of a consumer product specifically excluded dental restorative materials, which was used by professionals and not by consumers in the colloquial sense, the appellate court noted.

Third, the appellants asserted that the department exceeded its authority by adopting a definition that included products already regulated by existing workplace regulations.

The Court of Appeal denied the appellants’ argument. The appellate court determined that, even if it was assumed that existing workplace regulations perfectly prevented workplace injuries due to overexposure through inhalation, these regulations were not designed to protect against known exposure risks to sensitive subpopulations or exposures through dermal contacts.