California's Green Chemistry Initiative: Impact and Update

The green chemistry movement in California has intertwined legislative and administrative components, both of which need to be understood to appreciate the state's trajectory and the scope of the potential impact from a policy and a commercial standpoint. This report summarizes enacted legislation, highlights the recommendations in the December 2008 California Green Chemistry Initiative final report, and provides general background.

As reflected in the recent enactment of the federal Consumer Product Safety Improvements Act (CPSIA), we are facing an era in which sound risk assessment principles become less meaningful in the legislative branch and "protecting children" is becoming the watchword for a host of restrictive policies. Congressional leaders and state legislators are embracing and advancing legislation that embodies the precautionary principle, advancing the agendas of consumer and environmental groups and citing the European Union as an example of the need to do so. Thus we can expect to see a push for toxics legislation in the next Congress; the goal of many environmental groups is to transform the Toxic Substances Control Act (TSCA) into a U.S. REACH-like system, while at the same time advancing REACH programs at the state level to create a de facto national standard through legislative action in large states like California.[1]  If the California approach actually embodies sound science, the development could be positive. Layering on precautionary principle application to the U.S. legal framework, however, has potentially profound implications through greater exposure to product liability suits and regulatory enforcement. The policy battle is made more complex as well by retailer and consumer product manufacturer skittishness about appearing to oppose anything that relates to consumer safety or the environment.

Recent developments can be traced to a January 2004 request by two California legislative committees for an analysis of the key chemical challenges facing California. This request led to a 2006 report by Michael Wilson and others that describes the problems faced by California and proposes solutions.[2]  This report and other developments prompted Linda Adams, Secretary of the California Environmental Protection Agency (Cal/EPA), to establish the Green Chemistry Initiative in April 2007.[3]  Cal/EPA characterized the Initiative as an effort by the state to reduce the impact of toxic chemicals on public health and the environment.[4]

Through the Green Chemistry Initiative, administered by Cal/EPA's Department of Toxic Substances Control (DTSC), California intends to create a comprehensive list of toxic chemicals made, used and sold in the state and seeks to replace them, when practicable, with "greener" alternatives. The state seeks to advance green chemistry by encouraging the redesign of products, manufacturing processes and approaches. Finally, the initiative would require greater disclosure of chemical risks by those who manufacture and sell products containing toxic chemicals. On December 16, 2008, DTSC released its long-awaited final report on the initiative, requesting that the state implement various recommendations to promote green chemistry.

Even before the release of DTSC's final report, however, the legislature began addressing and promoting the green chemistry movement. Governor Schwarzenegger signed two bills in September 2008 that seek to advance the state's Green Chemistry Initiative. Both bills reference the Green Chemistry Initiative and were passed by the California legislature in late August.[5]

Legislation

Assembly Bill No. 1879 (AB 1879) has three primary features:

• Identify and prioritize chemicals of concern in consumer products (after adopting a process for doing so);
• Evaluate the identified chemicals of concern based on a multimedia life cycle assessment (after adopting a process for doing so); and
• Regulate the chemicals of concern.

DTSC currently regulates hazardous substances and waste in California primarily under the authority of the federal Resource Conservation and Recovery Act (RCRA)[6] and the California Health and Safety Code. AB 1879 greatly expands DTSC regulatory powers.[7]

By January 1, 2011, the Department will be required to adopt regulations establishing a process for identifying and evaluating chemicals of concern to public and environmental health in consumer products, as well as potential alternatives for these chemicals. Some product categories, such as certain pesticides and food, are exempt from the process.[8]  The identification and prioritization criteria will include consideration of: (1) the volume of the chemical in commerce in California, (2) the potential for exposure to the chemical in a consumer product, and (3) the potential effects on sensitive subpopulations, including infants and children. This effort should "reference and use, to the maximum extent feasible, available information from other nations, governments, and authoritative bodies that have undertaken similar chemical prioritization processes . . . ."

In assessing whether and how to regulate a substance, the bill requires DTSC to prepare a "multimedia life cycle evaluation." The bill defines a multimedia life cycle evaluation as:

the identification and evaluation of a significant adverse impact on public health or the environment, including air, water, or soil, that may result from the production, use, or disposal of a consumer product or consumer product ingredient.

This multimedia evaluation must be based on the "best available scientific data"[9] (a term imported into the CPSIA in several sections) and requires that DTSC consider the impact associated with the emission of air pollutants, including greenhouse gases, ozone-precursors, particulates and toxic air contaminants. Contamination of water sources and soil, waste and byproduct disposal, worker safety, and impacts to public health must also be considered.

The California Environmental Policy Council (Council) has a 90-day period to review these multimedia life cycle evaluations and any companion draft regulations.[10]  If the Council determines that the "proposed regulations will cause a significant adverse impact on the public health or the environment, or that alternatives exist that would be less adverse," the Council is directed to present those recommendations. All information relating to the Council's review is public. The approach thus has the potential to significantly affect intellectual property ownership in connection with use of specific chemicals, even when they are completely reacted in making a consumer product.

The bill requires that the rule making proceedings include an evaluation of the availability of potential alternatives and the potential hazards posed by those alternatives. The bill includes a long list of topics for consideration. The range of regulatory responses considered must also be described. Significantly, the bill specifies a wide variety of permitted regulatory responses, ranging from allowing DTSC to conclude that "no action" is required to permitting DTSC to restrict or ban a chemical of concern. Some of the other regulatory responses include imposing labeling requirements, controlling access to or limiting exposure to the chemical of concern, or "any other outcome" that advances the requirements of the new law.

The bill also directs the state to establish a Green Ribbon Science Panel by July 1, 2009. Members of the panel will be appointed from fifteen scientific disciplines and serve three-year terms. The panel is advisory and is intended to assist DTSC in developing green chemistry policy by providing advice on scientific matters and the adoption of regulations, and making recommendations of chemicals for which hazard traits and toxicological end-point data should be collected.

Senate Bill No. 509 (SB 509)

The Governor also signed SB 509, a companion bill, which requires the creation of a public "Toxics Information Clearinghouse" for chemical information accessible through an Internet Web portal.[11]  Cal/EPA's Office of Environmental Health Hazard Assessment (OEHHA), the agency responsible for Proposition 65 implementation, is be required to "evaluate and specify the hazard traits and environmental and toxicological end-points and any other relevant data that should be included in the clearinghouse." SB 509 also directs the development of "requirements and standards related to the design of the clearinghouse, data quality, and test methods" that govern the data eligible to be posted. The clearinghouse is not intended to be a static repository. Rather, the clearinghouse must be "capable of displaying updated information as new data becomes available."

Mixed Industry Reaction

The general principles of green chemistry have found broad recognition and might be summarized as the effort to find alternative processes and materials that are comparatively better than existing practices from environmental, performance and economic perspectives.[12]  A number of industry groups have indicated a preference for the initiative's comprehensive approach to regulation over the piecemeal chemical-by-chemical bans that have recently passed in CA.[13]  DuPont and the Grocery Manufacturers Association, in addition to a broad array of environmental groups, supported the green chemical bills AB 1879 and SB 509.[14]  Trade associations such as the American Chemistry Council (ACC) and the Consumer Specialty Products Association withdrew opposition to the bills after amendments were made to the original bills.[15]

While supporting innovation and improvement is laudable, there is an underlying expectation among some environmental supporters that the state's initiative will promptly lead to bans on certain chemicals, materials or processes. For example, comments submitted during Phase 1 of the Green Chemistry Initiative by ACC on behalf of 17 organizations highlight that current state chemical policies too often suggest that "chemicals can be presumed to be either ‘toxic' or ‘non-toxic.'"[16]  ACC warns that this assumption is not supported from a scientific perspective; however, this exemplifies the simplistic thinking that we saw in connection with adoption of the CPSIA.

Background on the California Green Chemistry Initiative

As explained by Adams in her 2007 memorandum announcing the initiative, earlier California legislation used "different approaches (e.g., bans, phase-outs, limitation on uses) and rel[ied] on different agencies to implement their provisions."[17]  Compounding the problem, chemicals laws have even varied by city within the state.[18]  Scientists grew increasingly concerned that the sudden banning of chemicals would result in the regrettable use of untested substitutions that could be equally or potentially more hazardous than the substance banned.[19]

Adding further support for the creation of the initiative was the 2006 report on green chemistry prepared by Michael Wilson and others, and published by the University of California.[20]  The report concluded that state and federal regulations, including TSCA, were not sufficiently protective of human health or the environment, and fell short in promoting innovation in the chemicals market. The report further found that there were significant gaps in understanding the health and environmental effects of the approximately 80,000 chemicals listed in TSCA's inventory of existing chemicals. We know that the environmental community is putting TSCA reform high on its agenda.

Against this backdrop, the current California administration has long echoed the need for a more unified and science-based approach to chemical regulation that would foster greener policies. When signing a controversial bill restricting the use of certain phthalates in children toys (Assembly Bill 1108), Governor Schwarzenegger criticized the chemical-by-chemical policy driven bans and encouraged the legislature to participate in the Green Chemistry Initiative. "Instead of making chemical policy through the legislature on a case by case basis, the goal of th[e] initiative is to work with scientists from California and around the world to evaluate the health effects of chemicals and possible alternatives in a comprehensive manner."[21]

Phase 1: April to December 2007
After Secretary Adam's announcement, the Green Chemistry Initiative was divided into two phases. In Phase 1, from April to December 2007, DTSC was charged with identifying broad policy options that could answer questions related to the toxicity of chemicals found in products, the health and environmental risks posed by the chemicals, and the economic and technical feasibility of chemical and non-chemical alternatives.[22]  By holding a series of public brainstorming sessions, a symposium with experts from government, industry and academia, creating a Science Advisory Panel, and requesting electronic solicitations from public interest and industry groups on its green chemistry web blog, DTSC compiled over 800 policy options on how to encourage green chemistry.

Particular attention was given to the Science Advisory Panel. The Panel was created to advise DTSC Director Maureen Gorsen on scientific and technical matters as she considers the many green chemistry options identified by participants in Phase 1. This 21-member panel consists of leading experts in chemistry, chemical engineering, environmental law, toxicology, public policy, pollution prevention and cleaner production, environmental and public health, risk analysis, materials science, nanotechnology, chemical synthesis, and research.[23]  Proponents of the Green Chemistry Initiative insist that the panel's participation will ensure that any policy recommendations adopted by DTSC will be based on a strong scientific foundation.

In January 2008, DTSC released a final report compiling all the options submitted by the public, academics, labor organizations, and the many manufacturing, industry, and environmental groups.[24]  In reviewing the submitted policy recommendations, DTSC identified the following "Key Elements" as areas of focus for the Green Chemical Initiative:

• empower consumers to make informed choices;
• disseminate information on toxic chemicals;
• forge strategic international partnerships;
• strengthening consumer protection laws;
• include green chemistry principles in an environmental education initiative;
• train a new generation of scientists and engineers;
• account for chemical toxicity and impacts in state procurement decisions; and
• expand California's pollution prevention program.

Phase 2: January 2008 to December 2008
In January 2008, Phase 2 of the Green Chemistry Initiative was initiated to analyze the Phase 1 options. In this phase, interagency teams within state government began to develop plans to implement the "Key Elements" presented in the Phase 1 report. Stakeholders were once again encouraged to provide input by submitting comments. Teams were tasked to use the "Key Elements" as a basis in crafting draft policy frameworks.

In this Phase, the Scientific Advisory Panel also began meeting regularly and was tasked with compiling a Phase 2 report. Released in May 2008, the Phase 2 report included a list of 38 supply- and demand-side options to advancing green chemistry in California.[25]  The options identified by the Panel to increase the supply of green technologies aimed at:

• instilling green chemistry into education;
• supporting research and innovation in green chemistry and engineering;
• building a green chemistry capacity; and
• providing incentives to industry and recognition of its efforts.

Options for driving demand for green chemistry aimed at:

• identifying and prioritizing chemicals or chemical uses of concern;
• developing, improving, and effectively employing regulations; and
• developing incentives to boost demand for green chemistry.

The initiative and phase reports made an impact on the legislature. Indeed, many of the provisions in AB 1879 and SB 509 were added specifically to address the options identified by the Science Advisory Panel. When DTSC concluded Phase 2 by releasing its final report of policy recommendations on December 16, 2008, two of the six recommended policy actions had already been addressed by AB 1879 and SB 509.[26]  The final report seeks to create a new chemical policy framework for California that will reduce the use of toxic substances in products and manufacturing processes, and increase disclosure of chemical risk information. The report grouped its findings into six categories.

• Expand pollution prevention and product stewardship programs to more business sectors to refocus additional resources on prevention rather than clean up, and promote ‘lifecycle thinking.
• Develop green chemistry workforce education and training through new and existing educational programs and partnerships, including technology transfer centers (incubators)
• Create an online product ingredient network. Product manufacturers and suppliers should disclose all chemical ingredients, including nanomaterials, in products sold in California. Confidential business information "should be protected but accessible by a designated state agency to determine whether protected information includes a hazardous chemical. All other chemical ingredient information would be available to any interested person via the web-based network."
• Create an online toxics clearinghouse. This is being accomplished through implementation of SB 509. It will create an online database of chemical toxicity and hazards populated with the guidance of a Green Ribbon Science Panel to help prioritize chemicals of concern and data needs.


• Accelerate the quest for safer products. This recommendation was the focus of AB 1879. Like the legislation, the report supports the creation of a systematic, science-based process to evaluate chemicals of concern and alternatives to ensure product safety and reduce or eliminate the need for chemical-by-chemical bans.
• Move toward a cradle-to-cradle economy to leverage market forces to produce products that are "benign-by-design" through "continuous innovation and design strategies that reduce production costs, improve quality, optimize resource use and generate less waste and pollution." The report calls for establishing a California Green Products Registry, a non-governmental organization, to develop green metrics and tools (e.g., environmental footprint calculators and sustainability indices) for a range of consumer products and encourage their use by businesses.

To support implementation of some of the report's recommendations, DTSC Director Maureen Gorsen stated that the department will begin releasing draft regulations in December 2008 and is drafting legislation for introduction in 2009. Stakeholders should continue to closely monitor these developments and be prepared to participate effectively in the process. This initiative may also influence proposed TSCA reforms at the federal level.

Conclusion

Viewed optimistically, the new California state laws and the continuing Green Chemistry Initiative may provide a context within which risk assessments of existing and alternative products may be rationally evaluated. More realistically, because these laws were promoted as an alternative to substance-specific ban legislation, the state will undoubtedly face demands to ban a number of substances, which will test the state's commitment to thoroughly analyzing existing and alternative uses for substances or products using appropriate science-based risk frameworks before pursuing regulatory action. Participation in this process will be important in shaping the direction of chemical regulation in California and California's approach raises important questions on the interface of state and federal regulation.

 FOOTNOTES

[1] TSCA 15 U.S.C. §§ 2601 – 2692; REACH refers to Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH)(Official Journal of the European Union L 396 of 30 December 2006).

[2] Michael P. Wilson, "Green Chemistry in California: A Framework for Leadership in Chemicals Policy and Innovation," California Policy Research Center (2006). The report was prepared in response to requests by the California Senate Environmental Quality Committee and the California Assembly Committee on Environmental Safety and Toxic Materials by the California Policy Research Center, part of the University of California system. The full report is available at: http://coeh.berkeley.edu/FINALgreenchemistryrpt.pdf.

[3] Official website of the Green Chemistry Initiative is located at: http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/index.cfm.

[4] Memorandum from Linda S. Adam, Cal/EPA, April 20, 2007: http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/upload/CalEPA_Green_Chemistry_Initiative_Memo.pdf.

[5] The bills were signed into law by the Governor on September 29, 2008, and will be added to sections of California's Health and Safety Code relating to hazardous materials.

[6] Passed in 1976, RCRA is the US's primary federal law governing the disposal of solid and hazardous waste.

[7] Full text of AB 1879: http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_1851-1900/ab_1879_bill_20080929_chaptered.html. Analysis of AB 1879: http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_1851-1900/ab_1879_cfa_20080830_154547_asm_floor.html.

[8] Section 25251 in the companion bill SB 509, discussed infra, states that a "consumer product" means "a product or part of a product that is used, brought, or leased for use by a person for any purposes." The section further lists seven product exclusions. Full text of SB 509 is available at: http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_0501-0550/sb_509_bill_20080929_chaptered.pdf .

[9] There may be a significant difference between the use of the statutory term of "best available scientific data" and the broader term of "best available science," which would include risk assessment, interpretative and science policy considerations.

[10] The Environmental Policy Council is comprised of the Secretary of Cal/EPA and the respective chairpersons and directors of the Agency's boards, departments, and offices. One of the Council's functions is to assist the Secretary in coordinating the implementation of crosscutting environmental programs.

[11] Full text of SB 509 is available at: http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_0501-0550/sb_509_bill_20080929_chaptered.html.

[12] Paul Anastas and John Warner, "Green Chemistry – Theory and Practice" (1998). "Green chemistry is the utilization of a set of principles that reduces or eliminates the use or generation of hazardous substances in the design, manufacture and application of chemical products." The 12 Principles of Green Chemistry presented by the authors appears on the U.S. EPA website at: http://www.epa.gov/greenchemistry/pubs/principles.html.

[13] See statements by Jack Gerard, former President of the American Chemistry Council at: http://www.americanchemistry.com/s_acc/sec_news_article.asp?SID=1&DID=6234&CID=206&VID=142&RTID=0&CIDQS=&Taxonomy=&specialSearch and at http://www.latimes.com/news/opinion/la-oew-gerard24sep24,1,6925119.story; See also the Chemical Industry Council of California's letter of official support for the initiative at: http://www.cicc.org/pdf/CICC_Statement_Green-Chemistry.pdf.

[14] See "Bill to Protect Californians from Hazardous Toxins in Consumer Products Passes Assembly," California Chronicle (September 2, 2008) available at: http://www.californiachronicle.com/articles/72877.

[15] See Chemistry Industry Council of California, "CICC Supported ‘Green Chemistry' Bills Successful," 2008-End of-Session Wrap-Up Report (September 3, 2008), available at: http://www.cicc.org/doc.asp?id=1666.

[16] Letter to Secretary Linda Adams (June 5, 2007): http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/upload/CalEPA_Green_Chemistry_Initiative_Memo.pdf. Other groups, such as IPC and CA Circuits Association have submitted similar comments warning that the state should not ban specific chemicals "without careful consideration of the full environment, social and economic impacts." See Letter to DTSC (April 23, 2008): http://www.ipc.org/3.0_Industry/3.4_EHS/2008/IPCCommentsOnCAGreenChemistryFocusQs042308.pdf.

[17] Memorandum from Linda S. Adam, Cal/EPA (April 20, 2007).

[18] For example, the city of San Francisco passed an ordinance banning bisphenol-A (BPA) in certain children toys in 2006. The initiative was eventually repealed in 2007. For more information visit: http://www.bisphenol-a.org/whatsNew/20070531SanFranciscoRepeal.html.

[19] "Interview: Michael P. Wilson, PhD, MPH, Megan Schwarzman, MD, MPH, UC Berkeley Program in Green Chemistry and Chemical Policies," Pesticide and Toxic Chemical News, Vol. 36, July 7, 2008: http://coeh.berkeley.edu/docs/news/08-07-07_ptcn.pdf.

[20] See Wilson, supra note 2.

[21] Read the October 14, 2007 press release at: http://gov.ca.gov/press-release/7711/, and Governor Schwarzenegger's signing statement at: http://gov.ca.gov/pdf/press/AB%201108%20signing%20message.pdf.

[22] An example of the type of "focus questions" posed to participants is available at: http://californiagreenchemistry.squarespace.com/focus-questions.

[23] A full list of panel members can be found at: http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/SAP.cfm#.

[24]  An executive summary is available at: http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/upload/Executive_Summary.pdf; A full report is available at: http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/upload/ Phase_1_Options_Report_Chapters.pdf.

[25] The full report is available at: http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/upload/GREEN_Chem.pdf.

[26] DTSC's final report is available at: http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/upload/GREEN_Chem.pdf.