Update on the Green Chemistry Initiative in California

April 4, 2011
Starting in 2007, the California Department of Toxic Substances Control (“DTSC”) began evaluating the state’s existing programs regarding the use of toxic chemicals, in an effort to reduce or eliminate toxics in consumer products (and waste streams created during product manufacturing or end of life disposal). This effort was coined the “Green Chemistry Initiative”. The following year, a Science Advisory Panel assembled by the DTSC issued its “Phase One Options Report” presenting 38 options for advancing “green chemistry” in the state.

Recognizing that legislation would be required to carry out many of the identified options, Governor Arnold Schwarzenegger signed two bills authorizing state regulators to move forward with DTSC’s Green Chemistry Initiative in September 2008 [1]. The two measures (A.B. 1897 and S.B. 509) instruct state agencies to: (i) regulate chemicals in consumer products; (ii) create an online Toxics Information Clearinghouse; (iii) develop a science-based program to evaluate industrial chemicals of concern and alternatives to such chemicals; and (iv) establish a “Green Ribbon Science Panel” to advise the department. The legislation also requires the Office of Environmental Health Hazard Assessment (a department under Cal-EPA) to develop hazard traits, environmental and toxicological information, and standards for use on the Clearinghouse.

In June 2010, DTSC released draft regulations for safer consumer products. The draft regulations prioritized toxic chemicals and products, required manufacturers to seek safer alternatives to toxic chemicals in their products, and created governmental responses for non-compliance. DTSC proposed the creation of a list of target chemicals considered toxic (harmful to people or the environment). Products containing those chemicals would then be prioritized based upon such factors as the volume in commerce, the extent of public exposure and how the product is eventually disposed. Manufacturers of those products would have to perform an “alternatives assessment” to determine if a viable, safer alternative is available.

DTSC received 762 pages of comments from more than 90 stakeholders, legislators and the public. DTSC found the comments generally supportive of the basic principles of the Green Chemistry Initiative; however, several issues remained to be addressed. DTSC renewed its consultation with scientists, alternatives assessment professionals, and life-cycle analyses practitioners in academia, industry and private consulting firms.

As a result of that consultation, on September 14, 2010, DTSC proposed revisions to its regulations. As with the earlier draft regulations, not everyone was happy with the new draft. Critics claimed that the new draft regulations failed to deliver on some of the most fundamental goals of the Green Chemistry Initiative, and that rather than inspiring a new era of greener, safer products and technologies, the September version of the regulations provided disincentives to the innovation and investment necessary to achieve the program’s goals.

As a result of input from a broad array of stakeholders, DTSC made significant changes to the regulations and released a revised version on November 16, 2010. In this proposal, DTSC decided to initially focus on three product categories: children’s products, personal care products, and household cleaning products. The proposal also modified the data required to be submitted to DTSC for its information-gathering process for the identification and prioritization of chemicals and products, eliminating the development of lists for “Chemicals under Consideration” and “Products under Consideration” and modifying the confidentiality provisions of the regulations.

Critics from all sides of the debate raised concerns about the November proposal. Some believed that the criteria and process for identifying and prioritizing chemicals of concern, priority products, and targets of future investigations were not clearly spelled out. Concern continued regarding the expense faced by a business if its products were to fall under the scrutiny of the DTSC.

Environmentalists, on the other hand, expressed concern that DTSC had reduced the scope of the regulations by a third, limited the range of products being regulated, and put the onus on the DTSC rather than industry to support safety evaluations. They also argued that the weaker regulations wouldn’t actually remove toxic products from store shelves, but would create regulatory paralysis as industries litigate against DTSC over unfavorable regulatory decisions.

Although the regulations implementing the Green Chemistry Initiative were to have been approved by January 1, 2011, DTSC decided in December 2010 to reconvene the Green Ribbon Science Panel to further vet various issues raised during the public comment period for the draft regulations.

The Green Ribbon Committee has subsequently determined that, to be more effective, it would establish subgroups that will work on specific assignments with the DTSC staff. The subgroups will then fold their work into the Green Ribbon Committee [2]. As the Committee has noted, the Green Ribbon Committee is not a consensus panel; rather, it is a group of experts established to provide advice to the DTSC.

As of this writing, there have been no new proposals regarding the draft regulations and the fate of Green Chemistry remains uncertain. The passage of Proposition 26, which requires a 2/3 supermajority to impose new fees, has thrown into question whether fees that would have been assessed on business to fund activities related to the Green Chemistry Initiative are legal. This issue has not been resolved, and may not be resolved until the program becomes operational.

[1] OMM last reported on the California Green Chemistry Initiative on December 9, 2008. That report can be found at http://www.omm.com/recent-developments-in-californias-green-chemistry-program-12-09-2008/.

[2] On a separate track, in August of 2010, the California Office of Environmental Health Hazard Assessment (“OEHHA”) held a public workshop to discuss pre-regulatory draft regulations entitled “Green Chemistry Hazard Traits, Endpoints, and Other Relevant Data.” These regulations were created to identify and define the hazard traits involved in various chemicals; list general categories of endpoints and other relevant data for each toxicological and environmental hazard trait; provide methods for determining whether a chemical has a toxicological hazard trait; and provide methods for determining carcinogenicity, developmental toxicity or reproductive toxicity hazardous traits of a chemical. These draft regulations were intended to support the work being done by the DTSC by expanding the list of chemicals DTSC’s regulations would govern. In December 2010, OEHHA published its proposed regulations. Industry reactions, as documented in comment letters made public by the agency, generally include concern over insufficient coordination between OEHHA and DTSC to produce regulations that will achieve the objectives of the Green Chemistry Initiative; the establishment of a unique California system of hazard trait nomenclature and a classification system that will substantially increase the costs; among other concerns. Environmentalists generally support these regulations. OEHHA is currently analyzing the comments it has received, and is proceeding with a scientific peer review, as required by law. If OEHHA determines that revisions are necessary, either a 15- or a 45-day comment period will follow, depending on the types of changes made. If the regulations are not revised, they will be submitted to the Office of Administrative Law, and will become effective upon approval.