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Green Chemistry: Implementing Changes to Chemical Use in California

Beveridge & Diamond, P.C., June 2, 2009

First in a B&D series on California’s Green Chemistry Initiative and Regulations.

Green Chemistry in California is well underway.  Intended to be a comprehensive approach for controlling potential hazards from chemicals in consumer products, the state’s Green Chemistry Initiative aims to assess the entire lifecycle of products containing hazardous chemicals -- from design through disposal -- and to find safer alternatives to chemicals of concern.  In doing so, the Green Chemistry Initiative seeks to reduce the use of hazardous chemicals and the generation of toxic wastes by changing how certain chemicals and products are used, manufactured, and designed.  However, California’s implementation of Green Chemistry is still a work in progress.  The California Department of Toxic Substances Control (“DTSC”), the state agency responsible for implementing the state’s foundational Green Chemistry law, is in the process of drafting the Green Chemistry regulations it plans to introduce in Fall 2009, and many questions still remain with respect to the regulatory approach DTSC plans to pursue.  

With its goal of introducing an entirely new regulatory framework for chemical use in the state, Green Chemistry’s impact has the potential to be far-reaching for manufacturers and industry.  Manufacturers could be required to overhaul certain manufacturing processes to produce more environmentally-friendly products.  Chemical makers could be required to disclose more information about their products to regulators.  Companies could be required to perform analyses of existing safer, more environmentally-friendly alternatives to their products.  They could also face additional product labeling requirements or outright chemical bans.   

The two foundational Green Chemistry statutes, Assembly Bill 1879 (“AB 1879”) and Senate Bill 509 (“SB 509”) were signed into law by Governor Arnold Schwarzenegger in Fall 2008 and were codified as California Healthy & Safety Code §§ 25251 et seq.  AB 1879 requires DTSC to adopt regulations that identify and prioritize chemicals of concern and evaluate safer alternatives to such chemicals in order to produce safer products.  Importantly, AB 1879 also requires DTSC to regulate chemicals of concern in consumer products, which may include prohibiting the use of these yet unidentified chemicals.  SB 509 requires an online toxics clearinghouse to be created that includes information on the toxicity and hazard traits of chemicals used everyday. 

Recently, DTSC provided a preview of its current thinking about implementing regulations for AB 1879 and SB 509.  In April, it issued a pre-decisional Draft Straw Proposal for its anticipated Safer Alternatives for Consumer Products rule, which were reviewed at the first meeting of the Green Ribbon Science Panel, a 27-member committee of scientists and other experts selected to advise DTSC on designing the state’s Green Chemistry program, including any proposed regulations.  The Draft Proposal sets forth DTSC’s current direction on identifying and prioritizing chemicals of concern; evaluating safer alternatives (e.g., other chemicals or substances that are safer than those used in the product); and proper regulatory responses.  Moreover, the issues flagged by DTSC at the Green Ribbon Science Panel meeting with respect to some of these areas suggest the need for further refinement.  As of now, the regulations aimed at accelerating the quest for safer products are taking shape as follows:

Identifying and Prioritizing Chemicals of Concern

In order to establish a process that identifies chemicals of concern as required by AB 1879, DTSC presently intends to formulate a broad list of selection criteria to determine a “candidate list” of such chemicals.  For instance, not only may DTSC include hazard endpoints, carcinogens, and endocrine disruptors as a basis of identifying chemicals of concern, it may also include criteria derived from a number of existing sources as well, such as lists published by various government authoritative bodies and established by other regulatory programs in the state (e.g., Proposition 65 criteria).  Under the Draft Straw Proposal, any chemical that meets one or more of the identified criteria would be placed on the chemicals of concern candidate list.  DTSC is still considering whether to add additional criteria, such as ecotoxicity, to its list.

Prioritizing Chemicals of Concern

AB 1879 further requires DTSC to adopt regulations that prioritize these chemicals of concern.  Under the Draft Straw Proposal, DTSC’s anticipated regulations will likely add a set of prioritization criteria that will result in a list of “prioritized chemicals of concern.”  At present, possible prioritization criteria include a chemical’s potential effects on sensitive subpopulations such as infants and the potential for exposure.  AB 1879 also requires volume to be considered, but how to use volume (i.e., identifying volume threshold for prioritization) requires more deliberation.  Any chemical that falls into any one of the identified prioritization categories would be designated a “high priority” chemical of concern but this may change based on feedback from members of the Panel, several of whom advocated for a tiered system of prioritization.  A product’s use and its persistence in the environment may be additional criteria considered in determining priority.  Further, serious questions remain with respect to classifying new chemicals which lack hazard characterization data and whether such chemicals would be properly prioritized as high hazards or something else, e.g., chemicals with unknown hazards. 

Requiring an Alternatives Assessment

Once a chemical has been identified and classified as a chemical of high concern, manufacturers of the consumer product containing that chemical will likely be responsible for conducting an alternatives analysis under the current Draft Straw Proposal.  As part of this analysis, a manufacturer would be compelled to determine whether and what alternatives exist to the targeted chemical used.  This would not be limited to simply substituting chemicals; it could also encompass alternative manufacturing processes or alternative forms of products that omit the particular chemical.  This analysis would include a lifecycle assessment by which both the economic and environmental impacts arising from a product are considered.  DTSC anticipates that this analysis will result in the selection of safer alternatives with more favorable impacts than the product under review. 

Critical questions still remain with respect to the safer alternatives assessment.  There are questions regarding who would have the burden of proof to show that there is no safer alternative to the chemical used in a given product.  There are concerns regarding potential conflicts of interest involving who conducts the alternatives analysis.  There is some debate regarding whether alternatives assessments should be made available to the public.  It also remains to be seen whether there is a way to require different degrees of assessment depending on the application of a chemical of high concern in a product or depending on how a product is handled of at the end of its useful life.

Regulatory Responses

While not discussed at the Green Ribbon Science Panel meeting, the regulatory responses contemplated by DTSC in its Draft Straw Proposal flesh out those described in AB 1879.  Nine regulatory responses are outlined for manufacturers that use chemicals of concern, ranging from providing additional information and product labeling requirements to engineering safety measures to prohibiting from sale products containing prioritized chemicals of concern, if their risks cannot be mitigated and a feasible alternative exists.  DTSC still must grapple the issue as to how these regulatory responses might correlate with the various outcomes of an alternatives analysis.


DTSC’s current direction, embodied by the Draft Straw Proposal, builds on the Department’s efforts over the last year to gather stakeholders and solicit ideas and feedback from them through public workshops or through the use of its “wiki,” an online tool which has allowed interested parties to comment on developing Green Chemistry regulations.  Moreover, AB 1879, SB 509 and the proposed regulations for each address only two of the six policy recommendations of the state’s Green Chemistry Initiative.  Thus, the efforts to date represent only the beginning stages of Green Chemistry in California, which will be an ongoing concern.  As the nation’s first comprehensive Green Chemistry program, it is regarded by many as a potential national model for chemical regulation. 

The formal rulemaking process for regulations regarding safer alternatives analysis which we expect DTSC to commence this coming fall reflects DTSC’s intent to adopt regulations well before the 2011 deadline imposed by AB 1879.  Under the rulemaking process, interested stakeholders will have opportunities for public comment immediately after DTSC issues a notice of the proposed rulemaking and publishes the proposed regulatory text.

Beveridge & Diamond, P.C., has monitored California Green Chemistry developments and continues to track related rulemaking activity to help clients participate in and navigate this evolving regulatory terrain.  The firm’s attorneys are applying  their skills and experience in dealing with complex regulations applicable to consumer products, chemicals, nanomaterials, pesticides and other industries to help existing clients respond to changes and opportunities that California’s Green Chemistry Initiative presents.

For more information, please contact Ken Finney (kfinney@bdlaw.com), Ryan Tacorda (rtacorda@bdlaw.com) or Laura Duncan (lduncan@bdlaw.com).

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