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California Green Chemistry Initiative Recommends Actions to Address Toxics in Products

Beveridge & Diamond, P.C., December 29, 2008

On December 16, 2008, California’s Environmental Protection Agency (Cal/EPA) released the Green Chemistry Initiative (GCI) Final Report.  Green chemistry is a systematic approach focused on designing processes and products that reduce the use of hazardous chemicals and the generation of toxic wastes throughout their lifecycle.  The GCI Report is the product of a nearly two-year effort, led by the California Department of Toxic Substances Control (DTSC), to develop a new framework for regulating chemicals in California.  The Report’s six recommendations aim to increase public access to information regarding chemicals in products and potential chemical hazards; increase incentives to develop safer, more environmentally friendly products; and increase the State’s capacity develop safer alternatives to toxic chemicals.

Summary and Analysis

The GCI Report’s six recommendations are:

1.  Expand Pollution Prevention.  The Report recommends expanding and modernizing DTSC’s pollution prevention programs.  Currently, these hazardous waste source reduction programs are only available for a limited number of industrial sectors.  (See http://www.dtsc.ca.gov/Pollution
Prevention/p2program-overview.cfm
).  By expanding pollution prevention programs and guidance to additional sectors, it is hoped that California businesses could reduce the environmental footprints of their facilities, manufactured products, and services.

2.  Develop Green Chemistry Workforce Education and Training, Research and Development and Technology Transfer.  The Report also recommends that the State increase its capacity to develop safer alternatives to toxic chemicals by training the next generation of citizens/consumers, chemists and engineers in green chemistry principles.  This would include expansion of K-12 curriculum, training college students and researchers regarding green chemistry concepts, promotion of public-private partnerships for green chemistry innovation and increased incentives for research and technology transfer.

3.  Create an Online Product Ingredient Network.  Under this recommendation, manufacturers, importers and retailers would be required to disclose chemical ingredients (including nanomaterials) for consumer products sold in California.  The State would establish a web-based data network to allow the public to access chemical ingredient information for individual products.  If confidential business information were an issue, this information would be accessible only to a designated State agency under specific security criteria.

Note:  In 2008, there was a proposal in Senate Bill (SB) 509 that would have required manufacturers and wholesalers to publish lists on the Internet detailing any ingredients in consumer products sold in California that were present at more than one tenth of one percent.  Although these ingredient disclosure provisions were removed from the amended bill, similar proposals may resurface in the next legislative term in response to this GCI recommendation.

4.  Create an Online Toxics Clearinghouse.  This recommendation, which has already been partially enacted by California’s SB 509 (2008), would create a web-based clearinghouse containing specific chemical hazard trait and toxicological end-point data for chemicals, including chemical compounds and nanomaterials.  The State would do this by deciding which particular hazard traits or toxicological end-points to include in the clearinghouse; initially populating the clearinghouse using data from existing sources (foreign governments and authoritative bodies); and then prioritizing chemicals of highest concern for addition to the clearinghouse.

5.  Accelerate the Quest for Safer Products.  The Report also recommends that the State create a science-based process to evaluate chemicals of concern and alternatives.  This recommendation was partially addressed by California Assembly Bill (AB) 1879, a 2008 law that requires DTSC to establish a process for identifying and prioritizing chemicals of concern in consumer products and gives DTSC broad authority to regulate those chemicals in consumer products.  Future regulations under this law will set forth the circumstances and evidence required to begin review of a particular chemical, the specific steps for the alternatives analysis and decision-making process, and the compliance mechanisms for different regulatory outcomes, such as labeling, chemical use restrictions or extended consumer responsibility.

6.  Move Toward a Cradle-to-Cradle Economy.  The Report’s final recommendation envisions the use of green metrics to stimulate retailer demand for more sustainable, less toxic products.  It proposes establishing a non-governmental California Green Products Registry to assist manufacturers and retailers in developing green metrics and tools (e.g., environmental footprint calculators, sustainability indices) for a range of consumer products.  Rather than using these green metrics on product labels, retailers would be encouraged to apply the metric scores to their entire product portfolios, set continuous environmental improvement targets, and make the results of these efforts available to the public.  State government may also be asked to consider the green metrics in their procurement decisions.

Additional Information

Action to implement the GCI Report recommendations is expected through legislation and agency rulemaking.  One rulemaking of particular importance to product manufacturers may be DTSC’s actions under SB 1879 that will establish both the process for identifying chemicals of concern in consumer products and the range of regulatory actions that DTSC may take in regard to these identified chemicals.  Cal/EPA’s Environmental Policy Council will review DTSC’s proposed regulations and may recommend alternative measures.  Industry should carefully monitor these rulemaking developments in 2009 and 2010 for opportunities to comment.

The GCI Report has importance beyond California.  Its recommendations are likely to influence other states also considering green chemistry and impact the expected Congressional debate on the future of the Toxic Substances Control Act.

To view the GCI Final Report click here or go to: http://www.dtsc.ca.gov/
PollutionPrevention/GreenChemistryInitiative/upload/GREEN_Chem.pdf

For additional information or guidance regarding developments in California Green Chemistry, please contact Laura Duncan (lduncan@bdlaw.com), Mark Duvall (mduvall@bdlaw.com) or Ken Finney (kfinney@bdlaw.com).

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