After Five Years, California Hopes its Green Chemistry Regulations are Ready
Most chemicals in the U.S. are loosely regulated by a piece of moth-eaten legislation called the Toxic Substances Control Act of 1976 (TSCA). The TSCA fully regulates only five substances — polychlorinated biphenyl (PCBs), asbestos, radon, lead and chlorofluorocarbons — and largely leaves the rest to the free market. Companies aren’t required to prove the chemicals they use are safe. It’s up to the government to prove that these chemicals aren’t safe.
While the EPA struggles with an update to the TSCA, the State of California has been fighting a battle in the last few years to push through its own more restrictive legislation.
The California Department of Toxic Substances Control (DTSC) recently presented what it says should be the final version of a six-part law called the “California Safer Consumer Products Regulation,” also called California’s green chemistry regulation, a set of regulations that will require manufacturers, resellers, and retailers to identify dangerous chemicals and substitute alternatives if they sell (and wish to continue to sell) in California. Under the final legislation, manufacturers will be required to review a finalized list of certain chemicals in certain products to determine whether less toxic chemicals could be substituted in their place.
While two parts of the green chemistry initiative were passed immediately in 2008 — these include the Hazardous Materials and Toxic Substances Evaluation and Regulation and the Toxic Information Clearinghouse — the other four parts have been works in progress. These include the DTSC’s identification of “candidate chemicals” (initially called “chemicals of concern”); the identification of “priority products” containing those candidate chemicals; “Responsible Entity” notification (“responsible entities” may include manufacturers, importers, assemblers, or retailers) and alternatives analysis; and finally, the DTSC’s imposition of regulatory responses to address the hazards of the products or alternatives.
Ultimately, the law aims to prompt manufacturers to switch to safer ingredients in consumer products.
The history of the state’s green chemistry regulations began in 2008, when the state legislature put forth a “green chemistry” initiative that directed the DTSC to adopt regulations establishing a “process for evaluating chemicals of concern in consumer products, and their potential alternatives, to determine how to best limit exposure or to reduce the level of hazard posed by a chemical of concern.” These regulations, which were supposed to be ready by January 2011, had a goal of prioritizing chemicals of concern in consumer products and establishing a process for evaluating safer alternatives. The first draft of the regulations, issued in November 2010, prompted a flurry of objections. Environmental groups were alarmed at how permissive the regulations were, and chemical and other industry groups were indignant about how restrictive the regulations were.
After numerous comment periods and redrafts, the state’s DTSC believes it finally has a workable draft. The most recent comments period ended on February 28th of this year. The DTSC worked extensively with industry groups, health care advocates and environmentalists to produce a version that it expects to become law on July 1, 2013. If it passes, it will become the first regulation in the United States codifying a green chemistry approach that requires extensive alternatives analyses and end-of-life product management, according to its authors.
The green chemistry initiative has evolved as the regulation has passed through the hands of industry, environmental groups and the public. The most notable changes have occurred in the rules regarding the protection of chemical trade secrets from the eyes of the public (though not the DTSC). In the July 2012 draft of the regulations, language was added that will permit companies to claim trade secret protection, provided they substantiated it by supplying specific proof in the form of documentation that conforms to the California Uniform Trade Secrets Act. If the DTSC considers the submitted information insufficient to substantiate a trade secret claim, the entity seeking protection will receive notice and has 30 days to submit further documentation or request judicial review. If neither of these steps are taken, the DTSC is within its rights to make public disclosure of the chemical or product information submitted.
As is often the case with legislation of this type, few of the stakeholders are completely happy. Environmental groups are unhappy that previous versions of the regulations, which put the onus on chemical manufacturers and the companies that use these chemicals to prove that chemicals are safe, have been watered down to resemble what is currently required at the federal level by TSCA. In other words, it’s up to the state to prove a chemical is harmful rather than up to the manufacturer to prove that the chemical is safe. Earlier versions of the legislation put more burdens on the manufacturers and sellers of a candidate chemical.
So what are “candidate chemicals”? They might be termed “the usual suspects,” or chemicals drawn from a list of existing state, federal, and international laws and regulations that identify substances that have shown hazardous traits (either to the environment or human health), including carcinogens, reproductive toxins, mutagenic toxins, neurotoxins, endocrine disruptors, toxic air contaminants, and water pollutants. In the current version of California’s green chemistry regulations, there are about 1,200 candidate chemicals, though more may be added later. (The earliest draft of the legislation included about 3,000 candidate chemicals and was ultimately pared down.) The regulations contain language designed to prevent manufacturers from making what the state calls “regrettable substitutions,” or replacing chemicals of concern with chemicals that are no better (or potentially worse) but simply not on the list.
The legislation is ground breaking because of its regulation of the entire lifecycle of a chemical product. While previous legislation concerned itself only with exposure to humans, the California legislation will regulate the entire cycle of a chemical product, from development and manufacturing through use and to the end of its life in disposal. This “cradle-to-grave” approach represents a major paradigm shift in U.S. environmental policy and builds a more proactive solution for ensuring that chemicals do no harm anywhere on their journey from creation to use to disposal.
California has a complicated history of chemical regulation, as anyone who has ever seen the movie “Erin Brokovich” knows. Despite numerous and conclusive studies indicating the dangers of the chemical hexavalent chromium, which was (and still is) found in drinking water across large swathes of California, the state and the federal EPA dragged their feet for decades.
Hexavalent chromium found its way into one-third of Californians’ drinking water thanks in part to Pacific Gas & Electric’s (PG&E) habit of using it to prevent rust in pipes — a practice that began in the 1950s. Despite scandal in the 1990s and a flurry of scientific studies that conclusively proved the substance’s carcinogenic traits, the federal and California EPAs bowed to industry pressure when it allowed the American Chemistry Council (ACC) to beg a delay in implementing action in order to conduct more studies to address so-called “data gaps” in existing research. That issue is still not fully resolved, and environmentalists accuse the ACC of using the fig leaf of science to cover its desire for inaction.
Should the state be able to finalize its green chemistry initiative, it will become a leader in the regulation of toxic chemicals in the U.S. The state’s next challenge, however, will be to ensure that the DTSC has enough manpower to implement and enforce the regulations. In a state with a troubled economy, new regulations might be little more than something to sit on a shelf waiting for “someday.”