Download California Enacts Nation`s First Green Chemistry Program

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California Enacts Nation’s First Green Chemistry Program
February 2009
In a move that may revolutionize the way
dangerous chemicals and processes are
regulated in the United States, California
Governor Arnold Schwarzenegger has
signed into law AB 1879 (Feuer) and
SB 509 (Simitian), creating the nation’s
first Green Chemistry program.
In May 2007, the Governor launched his
Green Chemistry Initiative — an ambitious
cradle-to-grave approach to the management
of chemicals. The Green Chemistry Initiative
seeks to transform the way that chemicals
and products are designed in order to
reduce or eliminate the hazards to health
and the environment that they cause.
Schwarzenegger advocates a “systematic”
approach to chemical regulation where
experts assess the health effects and risks
of chemicals of concern and recommend
safer alternatives. The Governor charged
the state Department of Toxic Substances
Control (DTSC) to make recommendations.
The DTSC released an initial compilation
of options in January of 2008. In June, a
Scientific Advisory Panel (SAP) followed
up with 38 additional options on chemical
education, research, policy and regulation.
The new laws codify two of the Green
Chemistry initiative’s goals: raising public
awareness about the hazards of “chemicals
of concern,” and finding alternatives that
are less threatening to the environment and
public health.
AB 1879 (Feuer) gives the DTSC sweeping
new authority to design a process for:
(i) identifying and prioritizing chemicals
or chemical ingredients for consideration
as “chemicals of concern”; (ii) analyzing
alternatives to chemicals of concern; and
(iii) determining how to best limit exposure
to, or reduce the level of hazard posed by,
a chemical of concern. The law empowers
the agency to take a wide variety of actions
with regard to chemicals of concern in
consumer products upon completion of this
risk and alternatives analysis, including the
imposition of restrictions or bans on use of
a chemical, labeling requirements, recycling
or disposal requirements.
The measure directs the DTSC to prepare
and submit a “multimedia lifecycle evaluation”
to the California Environmental Policy
Council in advance of required rulemaking.
The evaluation should consider the effect of
alternatives on air and water quality, including
Climate Change, and on worker safety.
AB 1879 also creates a Green Ribbon
Science Panel comprising experts from
various relevant fields to advise the agency on
implementation of the measure’s provisions.
(AB 1879, Chapter 559, Statutes of 2008).
SB 509 (Simitian) requires the DTSC to
establish a Toxics Information Clearinghouse
for the collection, maintenance and distribution
of specific chemical hazard traits and
toxicological end point data. The measure
empowers the state Office of Environmental
Health Hazard Assessment (OEHHA) to
specify what specific traits, end points, and
other relevant data will be included in the
database. (SB 509 Chapter 560, Statutes
of 2008).
Both measures establish a process for
the protection of information that a
manufacturer asserts is a “trade secret”.
Manufacturers are entitled to seek injunctive
relief if the agency determines that
information asserted as a trade secret
should be publicly disclosed.
The two measures have the potential to
change how toxic chemicals in consumer
products are regulated. In recent years,
environmental activists have bypassed the
federal government and sought chemical-bychemical restrictions in state legislatures.
In the past eight years, the California
legislature alone has considered approximately
30 bills banning or limiting specific chemicals.
In 2005, the legislature required cosmetics
and toiletry manufacturers to report
ingredients known to be carcinogens to the
2 California Enacts Nation’s First Green Chemistry Program
California Department of Public Health. In
2006, California placed strict limitations on
lead content in jewelry and, in 2007, banned
the use of phthalates in baby toys.
Taken together, California’s Green Chemistry
Initiative and the just-enacted measures
signal a shift to a more comprehensive,
science-based approach wherein scientists
and bureaucrats will play prominent roles
in determining the risks that chemicals
present to consumers and the steps
needed to protect consumers. The goal
of the legislation, according to Governor
Schwarzenegger, is to ensure that chemicals
of concern “can be removed from every
product in the design stage-protecting
people’s health and our environment.”
California’s approach both emulates and
differs from the European Union’s
Registration Evaluation And Authorization
of Chemicals (REACH) protocols. REACH
requires data on most chemicals produced
or sold into EU countries and safety testing
for some chemicals before they can be used
in products. Indeed, the newly authorized
DTSC Clearinghouse database may draw
heavily on data reporting in effect in Canada
and the European Union. Significantly,
California’s focus on safe design alternatives
and the regulation of chemicals in consumer
products goes further than the EU; it
embraces the so called “precautionary
principle” favored by environmentalists,
which places a greater burden on industry
to demonstrate that products and processes
will not cause harm to the public before they
are put into use.
What industries will be most affected by
the new program? AB 1879 confers broad
authority on DTSC to regulate any and
all chemicals of concern by 2011 with few
guidelines on how to carryout that mandate.
As a result, manufacturers of consumer
products and chemicals will need to remain
vigilant and engaged as regulations are
drafted and adopted over the next two years.
However, recent headlines and legislation
lend some insights as to the chemicals
and industries that may be at the top of
regulator’s lists, including: manufacturers
of electronics and solar panels (cadmium),
baby products (bisphenolA), furniture (fire
retardants), food additives (diacetyl), and
food packaging (PFOS, PFOA).
While DTSC has until January 1, 2011, to
promulgate regulations required by AB1879
and SB 509, the department is expected
to host a series of public workshops
and stakeholder meetings in 2009
on implementation.
For the chemicals industry, the switch to
a methodical science-based approach to
the regulation of chemicals in consumer
products will be a welcome change in
California. The industry has long argued
that state legislatures are ill-equipped to
make determinations on the risks that
chemicals present. However, if environmental
activists perceive that DTSC is not
adequately addressing issues on chemicals
of concern, they can be expected to prod the
legislature to take up matters directly.
Other states will closely watch how
California’s Green Chemistry effort is
implemented. Michigan Governor Jennifer
Granholm has signed an executive order on
Green Chemistry, and the state of Maine has
developed its own comprehensive program.
New York and Massachusetts are also
considering such initiatives.
If you have any questions about California’s
Green Chemistry Initiative or any other
matter addressed in this Update, please
contact the Mayer Brown lawyer with
whom you regularly work or the author
listed below.
Dario Frommer
+1 213 229 5158
[email protected]
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