Am. Chemistry Council v. Dep't of Toxic Substances Control

86 Cal.App.5th 146

302 Cal.Rptr.3d 52

AMERICAN CHEMISTRY COUNCIL et al., Plaintiffs and Appellants,

v.DEPARTMENT OF TOXIC SUBSTANCES CONTROL et al., Defendants and Appellants.

F082604

Court of Appeal, Fifth District, California.

Filed November 18, 2022

Sidley Austin, Sean A. Commons, Los Angeles, Paul J. Zidlicky and Joseph T. Zaleski for Plaintiff and Appellant American Chemistry Council.

Atkinson, Andelson, Loya, Ruud & Romo, Brian M. Wheeler, Brian M. Wheeler, and Andrew M. Aller, Fresno, for Plaintiff and Appellant General Coatings Manufacturing Corp.

Rob Bonta, Attorney General, Edward H. Ochoa, Assistant Attorney General, Sarah E. Morrison, Catherine M. Wieman and Lani M. Maher, Deputy Attorneys General, for Defendants and Appellants.

HILL, P. J.

This case involves an appeal and cross-appeal following the trial court's determination that the Department of Toxic Substances Control (the Department) acted within its authority and properly complied with the California Administrative Procedure Act (APA; Gov. Code, § 11340 et seq. ) but violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq. ) when it enacted a regulation listing spray polyurethane foam systems containing unreacted methylene diphenyl diisocyanates (spray foam systems) as a priority product under California's "Green Chemistry" law ( Health & Saf. Code, §§ 25251 – 25257.2 ) (the listing regulation).¹ Appellants in this case, American Chemistry Council (ACC) and General Coatings Manufacturing Corp. (General Coatings), challenge the Department's actions on two grounds. First, that listing spray foam systems as a priority product was in excess of the Department's authority under the Green Chemistry law and its enacting regulations, the Safer Consumer Products regulations. Second, that the Department violated the APA in multiple ways when enacting the listing regulation. The Department raises a separate issue in its cross-appeal that challenges the trial court's determination that it violated CEQA. The Department argues the trial court's ruling was incorrect, but also that the claim should have been deemed untimely under CEQA's statute of limitations. For the reasons set forth below, we affirm the trial court's determination that the Department acted within its authority and within the requirements of the APA when it enacted the listing regulation. We then reverse the trial court's finding of a CEQA violation on the ground that the claim was untimely under the statute of limitations.

OVERVIEW OF THE GREEN CHEMISTRY LAW AND THE SAFER CONSUMER PRODUCTS REGULATIONS

Given the importance of the Green Chemistry law and the Safer Consumer Products regulations to both the overall understanding of the factual record and many of the core issues in this case, we begin by summarizing both the law and the regulatory structure.

Overview of the Green Chemistry Law

In 2008, article 14, the Green Chemistry law, was added to chapter 6.5 of division 20 of the Health and Safety Code, the chapter on Hazardous Waste Control. (See Health & Saf. Code, §§ 25251 – 25257.2, added by Stats. 2008, ch. 560, § 1.) Although amended throughout the years, the statutory scheme itself remains relatively sparse. It consists of definitions, two statutes providing guidance for and authorizing additional regulations, an evaluation process for generating those regulations, the establishment of a green ribbon science panel and toxic information clearinghouse, protections for trade secrets disclosed in connection with the statutory scheme's goals, boundaries on the authority granted to regulate hazardous waste, and a later-added set of statutory guidelines for a healthy nail salon recognition program.

Relevant to the issues in this appeal, the statutes contain one definition related to the core functions of the law. In this definition, "consumer product" is defined to mean "a product or part of the product that is used, bought, or leased for use by a person for any purposes." ( Health & Saf. Code, § 25251, subd. (e).) The definition then excludes any "dangerous drug or dangerous device" under section 4022 of the Business and Professions Code, "[d]ental restorative materials" under section 1648.20, subdivision (b) of the same code, any "device" as defined in section 4023 of the same code, any "food" as defined in section 109935, subdivision (a) of the Health and Safety Code, the packaging associated with several of these products, and any "pesticide" as defined under a certain federal law. ( Health & Saf. Code, § 25251, subd. (e)(1)–(6).)

As noted, the statutory scheme includes two core authorizations for further regulatory actions. The first requires the Department to adopt regulations "to establish a process to identify and prioritize those chemicals or chemical ingredients in consumer products that may be considered as being a chemical of concern." ( Health & Saf. Code, § 25252, subd. (a).) These regulations must "establish an identification and prioritization process that includes, but is not limited to," three considerations: (1) the "volume of the chemical in commerce in this state"; (2) the "potential for exposure to the chemical in a consumer product"; and (3) the "[p]otential effects on sensitive subpopulations, including infants and children." ( Health & Saf. Code, § 25252, subd. (a)(1)–(3).) In developing the regulations, the Department must also "develop criteria by which chemicals and their alternatives may be evaluated," including "traits, characteristics, and endpoints" as included in the clearinghouse aspects of the statutory scheme. ( Health & Saf. Code, § 25252, subd. (b)(1).)

The second authorization for regulatory action requires the Department to adopt regulations "that establish a process for evaluating chemicals of concern in consumer products, and their potential alternatives, to determine how best to limit exposure or to reduce the level of hazard posed by a chemical of concern." ( Health & Saf. Code, § 25253, subd. (a)(1).) As part of these regulations, the Department must "establish a process that includes an evaluation of the availability of potential alternatives and potential hazards posed by those alternatives, as well as an evaluation of critical exposure pathways" and include life cycle assessment tools that consider at least 13 identified factors such as product function or performance, public health impacts, and economic impacts. ( Health & Saf. Code, § 25253, subd. (a)(2).) Finally, the regulations developed in this area must "specify the range of regulatory responses that the [D]epartment may take following the completion of the alternatives analysis," including "[n]ot requiring any action," "[i]mposing requirements to provide additional information needed to assess" chemicals of concern and their alternatives, imposing labeling requirements or restrictions on use, "[p]rohibiting the use of the chemical of concern in the consumer product," and requiring funding for "green chemistry challenge grants where no feasible safer alternative exists," among others. ( Health & Saf. Code, § 25253, subd. (b).)

To the extent the statutory scheme contains any indication of the overall goals of the new regulatory scheme, those are contained in the statute defining the role of the green ribbon science panel. There, the panel is authorized to advise on "matters in support of the goals of this article," which are described as "significantly reducing adverse health and environmental impacts of chemicals used in commerce, as well as the overall costs of those impacts to the state's society, by encouraging the redesign of consumer products, manufacturing processes, and approaches." ( Health & Saf. Code, § 25255, subd. (a).)

Finally, the statutory scheme includes limitations on the newly granted authority by noting the statutes may not limit any other agency's "existing authority over hazardous materials" and that the statutes do "not authorize the [D]epartment to supersede the regulatory authority of any other department." ( Health & Saf. Code, § 25257.1, subds. (a), (b).) Further, the statute prevents duplicating or adopting conflicting regulations "for product categories already regulated or subject to pending regulation consistent with the purposes of this article." ( Health & Saf. Code, § 25257.1, subd. (c).)

Overview of the Safer Consumer Products Regulations

The regulations ultimately adopted to implement the Green Chemistry law are called the Safer Consumer Products regulations. (See Cal. Code Regs., tit. 22, § 69501 et seq. )² The regulations state they specify the "process for identifying and prioritizing Priority Products and their Chemicals of Concern, and identifying and analyzing alternatives to determine how best to eliminate or reduce potential exposures to, or the level of potential adverse impacts posed by, the Chemical(s) of Concern in Priority Products." ( Tit. 22, § 69501, subd. (a).)

At a general level, and as applicable to this case, the regulations set forth a four-step process for identifying and regulating priority products and their chemicals of concern.³ These steps are: (1) to identify candidate chemicals (see tit. 22, §§ 69502–69502.3); (2) to identify and prioritize products containing candidate chemicals (see tit. 22, §§ 69503–69503.7); (3) to have responsible parties submit alternatives analysis reports for priority products (see tit. 22, §§ 69505.1–69505.9); and (4) to utilize those reports to identify and implement regulatory responses for priority products (see tit. 22, §§ 69506–69506.10). Although this case focuses primarily on issues relating to the second step, we provide a fuller summary of the regulations for context.

Identifying Candidate Chemicals

Candidate chemicals are those chemicals that are considered to be "a candidate for designation as a Chemical of Concern" under the regulatory scheme. (Tit. 22, § 69501.1, subd. (a)(19).) The list of these chemicals is derived either through reference to lists...