On Sept. 29, 2008, California Gov. Arnold Schwarzenegger signed two green chemistry bills—AB 1879 and SB 509—into law. This new green chemistry law totally refocuses chemical regulation in California, from reacting to chemicals after they have already been used in manufacturing or industrial processes, to assessing and regulating the use of chemicals in the design stage. The regulatory system created by the law will evaluate chemical risks and impose tailored restrictions based on science and the real-life impacts of chemical usage, rather than instituting an abstract chemical ban. California’s green chemistry law will take effect Jan. 1, 2009, which means the rulemaking process for the numerous regulations needed to implement the system will begin in earnest.
To achieve the goal of a regulatory system based on science and the real-life impacts of chemical usage and exposure, the green chemistry law was drafted using a comprehensive and collaborative approach. Implementation of the regulations will involve an interagency consultative process, incorporating chemicalrelated research done by other government agencies, and comments from stakeholders and the public. This approach, combined with the notice and comment requirements of the California Administrative Procedure Act, is intended to eliminate the ad hoc rulemaking seen with other environmental laws, such as California’s Proposition 65. Additionally, the scope of the law includes all chemicals used in consumer products, unlike the current patchwork of California laws that address only select product categories, such as lead in jewelry and on lunchboxes, chemicals in food containers, and household products such as light bulbs and batteries.
The green chemistry law is best described as an umbrella, authorizing and directing California’s Department of Toxic Substances Control (DTSC) to adopt a system of detailed regulations highlighted by the following:
- Creating a process to identify potentially harmful chemicals in consumer products and prioritize them. Factors will include chemical volume, potential for exposure, and potential effects on sensitive receptors, e.g., children and the elderly
- Enumerating steps to evaluate chemicals of concern and their alternatives, to determine the best way to reduce exposure to them or the degree of threat they pose to public health and the environment
- Mandatory multimedia lifecycle evaluations for those consumer products containing chemicals identified as harmful and targeted for regulation – evaluations must analyze the impact of the production, use or disposal of those consumer products
- Specifying a range of possible regulatory responses to each chemical evaluated, including no action, labeling requirements, product access control, restrictions/prohibitions on chemical use in products, mandated funding for research, imposing end-of-life disposal or recycling requirements
- Evaluating numerous aspects of possible chemical alternatives, including product function and performance; useful life, materials and resource consumption; and economic impacts
- Mandatory California Environmental Policy Council review of DTSC’s proposed regulations as a checks-and-balances system
- Establishing a Toxics Information Clearinghouse to collect and disseminate information about chemical hazards, and both environmental and toxicological data for use in risk assessments
- Creating a Green Ribbon Science Panel to advise DTSC on the costs of proposed regulations and to ensure that such regulations are based on sound science
The most prominent feature of California’s green chemistry law is its foundation on science and real-life assessment of chemical usage and exposure risk. The drafters intended to create a regulatory system that balances various interests in tension with one another, such as: (1) A structured yet transparent process, where the factors to be considered are specified, the decision-makers identified, and a checks-andbalances system is utilized; (2) Consideration of the costs and technological feasibility of alternatives, recognizing practical economic realities and societal demands for certain products; and (3) Fostering innovation by regulating the design phase of products and processes, rather than managing and controlling wastes and byproducts.
However, given that the green chemistry law only creates a broad legal framework, the specific regulations to be drafted by DTSC will give life to the system and will directly impact industry. Thus, industry stakeholders must carefully focus their attention on the drafting phase, express their views and voice their concerns. The following areas are worthy of particular focus:
- The lifecycle evaluation process to be performed and/or coordinated by DTSC will involve the identification and evaluation of whether a chemical, as used in consumer products, has a “significant adverse impact on public health or the environment.” How stringently or loosely this phrase is interpreted will determine whether or not particular chemicals are subject to regulation under the green chemistry law, and therefore is critically important.
- The definition of a “consumer product” under the green chemistry law is extremely broad: “a product or part of the product that is used, bought, or leased for use by a person for any purposes.” How the DTSC regulations interpret this term and apply its definition will govern whether specific products or product categories are regulated or exempt under the green chemistry law.
- The degree to which comments by the California Environmental Policy Council, whose role is to advise on DTSC’s proposed regulations, are considered and acted upon by DTSC as the lead agency to implement the green chemistry law, remains to be seen.
- The level of involvement of the Green Ribbon Science Panel in providing advice to DTSC in the regulatory process remains unknown, but is vulnerable in two ways: First, the Panel’s responsibilities are permissive (“the panel may take any of the following actions”) rather than prescriptive. Second, DTSC decides whether the Panel meets more than twice annually and is responsible for providing the Panel with staff and administrative support.
Like all new regulations, those promulgated under the new green chemistry law will impose operational changes and up-front compliance costs on the regulated community. However, change also presents new opportunities. Compliance with California’s green chemistry law will likely reduce the costs of proper hazardous waste management and disposal, and satisfaction of workplace safety and health requirements. New opportunities to market products and processes as eco-friendly will also arise. In the near-term, once the regulations have been drafted, industry will be able to assess the impacts on specific operations and work proactively to satisfy them in as cost-efficient a manner as possible.