REGULATORY REVIEW: California's Green Chemistry Legislation
August 1, 2011
In 2008, California Assembly Bill 1879 (AB 1879), which requires the state of California to implement a Green Chemistry Rule or Law by the year 2011, became a law. It is anticipated that this law will be the most comprehensive and progressive of its type in the world, and it may even become a basis for chemical reform on the national and global level. Therefore, AB 1879 is of great importance to the industrial field.
The Department of Toxic Substances Control (DTSC), a department within the California Environmental Protection Agency (Cal-EPA), is authorized by AB 1879 to develop a program that will identify, prioritize and address chemicals of concern in marketplace products. From there, the DTSC will foster a movement toward safer alternatives via an ongoing process of identifying chemicals of concern (and products where exposure to such chemicals is possible), performing assessments of other chemicals in applications to determine if viable alternatives are practical, and issuing regulatory responses.
Chemicals of ConcernAmong other factors, special consideration is given to chemicals that are:
- Particularly problematic for sensitive populations;
- Persistent bio-accumulative toxins (PBTs); or
- Pervasive in commerce, and therefore have a greater likelihood of exposure.
A “chemicals of concern” list may serve as a queue for chemicals that could have eventual action taken upon them by the DTSC. Since it has been widely acknowledged in public meetings that neither the DTSC nor the industrial field could handle the volume of chemicals on a Chemicals of Concern roster all at once, it is likely that the final version of this rule will allow for the determination of priority chemicals. A priority chemical would be one that is being or will soon be assessed. The concept of a de minimis rule for priority chemicals also remains active, and the impact that would have on formulating and driving unintentional or trace materials out of basic chemicals is currently under debate.
Products of ConcernThe original bill states that the universe of products for consideration is all consumer products as defined in Section 25152 of the State Health and Safety Code. To paraphrase, a consumer product is any product that a person uses, installs, can come into contact with, etc., throughout their lifecycle (with the exception of product categories such as pesticides, food, drugs and munitions). However, primary products of concern would again be those that have a strong possibility of coming into contact with especially sensitive populations. As with the chemicals of concern, stakeholders would be overwhelmed by too many products to assess at one time. As such, priority products would likely be designated for more immediate assessment.
Alternatives AssessmentA process must be created for assessing the risks of priority chemicals in priority products. This process is expected to include in-depth lifecycle analysis, which would allow for a measurement of potential risk of chemicals against one another in a manner that would include efficacy, cost, environmental factors (a requirement in California under the California Environmental Quality Act) and all other concerns related to lifecycle studies.
Alternatives assessment is seen by many as the most uncertain and potentially expensive part of the legislation. Many third-party organizations have a stake in this issue and could provide value in performing these assessments for companies. In addition, software programs are available that can model product profiles and rankings. Both of these options, however, involve costs that place smaller businesses at a disadvantage.
Alternatives assessment is also the area where discussions of confidential business information (CBI) abound. Right-to-know advocates, industry and the government all have varying perspectives on what can and should be kept as CBI throughout this process. Many have argued that without insuring CBI, the intent of promoting greener alternatives will not be realized because the competitive advantage will be squelched.
Current StatusIn the fall of 2010, the DTSC’s Proposed Green Chemistry Rule was derailed by non-governmental organizations and members of the state legislature as being too lenient. The DTSC was strongly encouraged to rewrite the regulation. Key legislatures demanded that the Green Ribbon Science Panel (GRSP) have greater input into the rule. The GRSP is currently making its recommendations to DTSC staff, who will be rewriting the regulation this summer. Once a new draft is released for public comment, we will have a better idea of what the process will truly encompass.
Many have called California a bellwether for environmental regulation. The Green Chemistry Regulations that will come forth as a result of AB 1879 will likely push that envelope again. Time will only tell how much the envelope will be forced outward.