Recent Developments in California's Green Chemistry Program
December 9, 2008
This fall, California became the first state to enact legislation allowing its regulators to leverage “green chemistry” through use of restrictions or bans on toxic products. Green chemistry contemplates protection of health and the environment through design, manufacture, and distribution methods that reduce or eliminate the use of toxic chemicals in consumer products (including end-of-life waste disposal). A number of manufacturing concerns and trade associations have pioneered the use of green chemistry over the last decade, and many have reported substantial savings associated with the use of such methods. Green chemistry is a world-wide movement with many strong adherents in the European Union, including a 1500-member Green Chemistry Network in the UK.
In what follows, we provide an overview of developments related to the new California legislation. Much of this background serves to identify likely next steps in the California green chemistry regulatory agenda.
Background
In 2007, California’s Department of Toxic Substances Control (“DTSC”) (an agency under the umbrella of the California Environmental Protection Agency or “Cal/EPA”) began an effort to reform the state’s existing toxic chemicals regulatory program to accomplish green chemistry goals. The green chemistry effort in California was aimed at developing a coordinated, comprehensive strategy designed to foster the development of information on the hazards posed by chemicals, reduce exposure to dangerous substances, encourage cleaner and less polluting industrial processes, and encourage manufacturers to take greater responsibility for the products they produce.[1]
Cal/EPA held stakeholder meetings with particular focus on incentives for the design of less toxic products and the state’s role in stimulating green chemistry.[2] A January 2008 report identified several areas and topics for further development, including collecting and disseminating accurate and comprehensive chemical information, empowering consumers to make informed choices, accounting for chemical toxicity impacts in state procurement decisions, training a new generation of scientists and engineers, incorporating green chemistry principles in an environmental education initiative, forging strategic international partnerships, strengthening consumer protection laws, and expanding California’s pollution prevention program.[3]
In May 2008, the Green Chemistry Initiative Science Advisory Panel (“Science Advisory Panel” or “Panel”), a 21 member group composed of leading thinkers and proponents of green chemistry created by the DTSC to identify policy options, completed its report on advancing green chemistry in California, presenting 38 options for state action.
Options Presented by the Science Advisory Panel
The Science Advisory Panel report presents both “supply-side” and “demand-side” options. Supply-side options are intended to help facilitate innovation in green chemistry as applied to products, processes, and technologies. Demand-side options help to inform the marketplace and promote acceptance of new, “greener” products, processes, and technologies through economic and regulatory policy. Supply-side options include instituting green chemistry initiatives in education; supporting research and innovation in green chemistry and engineering; building green chemistry capacity through development of tools, methodologies, and strategies for developing greener chemicals; and providing industry with incentives and recognition of its efforts. The Panel’s options on the demand side include identifying and prioritizing chemicals or chemical uses of concern; developing, improving, and effectively employing regulations; and developing incentives to boost demand for green chemistry.
As for specific options that could directly impact the use of certain chemicals, the following options are among the most prescriptive:
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Adopt a definition of green chemistry as “the design of chemical products and processes that reduce or eliminate the use and generation of hazardous substances.”
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Conduct a third-party audit of green chemistry activities in California that would identify all research and advancement programs in green chemistry at California universities, in industry, and in non-governmental organizations; identify all science- and technology-related programs in state and federal government operations in California; conduct a “gap” analysis that reviews the current portfolio of green chemistry science and technology in California, and provide an analysis of where the state has strengths, weaknesses, opportunities, and needs. (Option 9.)
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Use tax credits and other policies to encourage and reward corporate support of green chemistry research and development activities at California universities and colleges. (Option 10.)
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Encourage chemical manufacturers and users in California to (1) implement a management system that includes process and product safety elements; (2) arrange for third-party certification by representatives of a nationally recognized auditing board (e.g., Board of Environment, Health and Safety Auditor Certifications or ANSI-ASQ-National Accreditation Board); and (3) affirm to the state that the management systems are in place and that third-party certification has occurred. Companies would affirm to the state that the chemical evaluation and assessment approach is publicly available. (Option 13.)
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Establish a California Green Chemistry challenge awards program to recognize individuals, schools, and companies for outstanding achievement in the use of greener synthetic pathways, the use of greener reaction conditions, and the design of greener chemicals. (Option 16.)
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Establish a state technical assistance service aimed at small- and medium-sized firms. (Option 19.)
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Initiate actions to reduce production, use, and release of chemicals of concern and replace them with alternatives known to be of lesser or no concern. (Option 22.)
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Compile and integrate existing information and develop new sources of information to determine which chemicals are produced, imported, sold, used, and disposed of in the state, in what quantities and forms, by which entities, and for what purposes. Such information would be made public, for the most part, with appropriate provision for protection of confidential business information. California producers/importers, sellers, and users of chemicals in the state would submit and periodically update information on production and processing (amounts, facility locations), uses (including uses in products), and post-use management. (Option 23.)
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Require chemical manufacturers and importers in California to provide specific information about the hazards and uses of their products. Cal/EPA would develop a process for receiving, assessing, and communicating this information with other authorities and the public. A standardized mechanism would be established for the transmission of a reasonable set of information to downstream users. The program could be funded, in part, through fees paid by companies at the time the information is provided to Cal/EPA. (Option 26.)
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Require companies to provide chemical information to Cal/EPA that they submit to other authorities. Information would include relevant hazard designations, specific human and ecological hazards, environmental impacts, uses in California, safety measures, and potential alternatives. (Option 27.)
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Require product manufacturers and importers in California to disclose chemical ingredients. The state would need to establish a process for collecting and organizing this information and making it publicly available without divulging legitimate trade secrets. (Option 28.)
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Require chemical makers and users to systematically identify and consider safer alternatives. It is envisioned that this would encourage chemical producers, users, and suppliers – and others in the supply chain – to more seriously consider adopting or developing alternative technologies. (Option 29.)
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Authorize Cal/EPA to phase out hazardous chemicals (including chlorinated solvents), using a multi-media approach that includes occupational, community, consumer, and environmental exposures in a life-cycle analysis. (Options 30 and 31.)
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Require all air quality management districts to adopt South Coast Air Quality Management District (“SCAQMD”) regulations on cleaning products. SCAQMD has established strict rules on cleaning products to prevent releases of reactive hydrocarbons that contribute to photochemical pollution or smog. (Option 32.)
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Develop a “green scorecard” for chemical products, aimed at informing producers and consumers about which products are greener than others. (Option 34.)
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Incorporate green chemistry criteria into state procurement processes. (Option 36.)
Future Efforts
Following submission of the Panel Report, the Green Chemistry effort moved into “Phase Two”: The formation of interagency teams within state government to develop plans for implementation. A team has been established for each of the Phase I “Key Elements” in order to:
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Empower consumers to make informed choices;
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Disseminate information on toxic chemicals;
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Develop strategic international partnerships;
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Strengthen consumer protection laws;
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Incorporate green chemistry principles into an environmental education initiative;
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Train a new generation of scientists and engineers;
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Account for chemical toxicity and impacts in state procurement decisions; and
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Expand California’s pollution prevention program.
Of most immediate interest to business and industry is the team focused on strengthening consumer laws.[4] Two measures were identified to be implemented in the short-term, aimed at improving consumer protection from hazardous chemicals in products. The first would establish an interagency consumer products workgroup to resolve situations where consumer products authority overlaps among agencies. The second measure would expand this relationship to share resources for compliance and investigative work. Two additional long-term options were identified to build a toxic material handling system that would track chemicals through their entire life cycle. One option would include consumer products currently absent from the regulated universe. The other would complete the life cycle/recycle, “cradle-to-cradle” system by expanding the assessment and regulatory actions to all chemicals of concern in consumer products, and would focus on criteria to identify and prioritize those chemicals of concern.
Final draft team reports were completed by each Key Element Team during July 2008.[5] The Final Phase Two Green Chemistry Initiative report was delivered to Governor Schwarzenegger with recommendations for future policy decisions in September 2008.
I. Legislative Developments
In September 2008, Governor Arnold Schwarzenegger signed two bills giving state regulators authority to move forward with DTSC’s Green Chemistry program. The two measures (A.B. 1897 and S.B. 509) give state agencies authority to regulate chemicals in consumer products and create an online Toxics Information Clearinghouse.
A.B. 1879 requires the California Department of Toxic Substances Control to develop a science-based program to evaluate industrial chemicals of concern and study alternatives to the chemicals. It also calls for the creation of a “Green Ribbon Science Panel” to advise the department. Under the measure, the department has authority to restrict or ban the use of chemicals.
S.B. 509 calls for the development of an Internet-based clearinghouse for data on chemicals and potential hazards, with the goal of increasing consumer knowledge about the toxicity and hazards of everyday chemicals. It also requires the Office of Environmental Health Hazard Assessment to develop hazard traits, and environmental and toxicological information and standards for use on the clearinghouse.
Conclusion
The California Green Chemistry program is a comprehensive effort led by government agencies to educate manufacturers, the public, and future chemists in order to spur reductions in, and more thorough control over, the use of toxic materials in consumer products. While the program is subject continued legislative scrutiny, making the timing of new developments hard to predict, it is clear that more stringent laws and regulations should be expected.
[1] See memo from Linda S. Adams to Chairpersons and Directors, Boards, Department and Office,
Secretary of Environmental Protection, California Environmental Protection Agency (Cal/EPA) Green Chemistry Initiative, April 20, 2007 (available at http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/upload/CalEPA_Green_Chemistry_Initiative_Memo.pdf).
[2] See green chemistry fact sheet found at http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/upload/Background.pdf.
[3] See Cal/EPA,
Executive Summary, California Green Chemistry Initiative Phase 1: A Compilation of Options, January, 2008 found at http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/upload/Executive_Summary.pdf.
[4] See report at http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/upload/CGCI_Key_Element_Report_CP.pdf.
[5] Available at http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/upload/Key-Element-Team-Status1.pdf.
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