California Enacts Nation’s First Green Chemistry Law: Increased Chemical Oversight and Regulation
 
October 6, 2008
 
Heather S. Bowman- San Francisco
Elizabeth Lake - San Francisco
Andrea Sumits - San Francisco

On September 29, 2008, Governor Schwarzenegger signed into law two bills that set California on the path toward a comprehensive green chemistry program to reduce or eliminate hazardous chemicals in consumer products. AB 1879 and SB 509 are designed to work together to provide a basis for the state to assume more responsibility for identifying, analyzing and regulating chemicals in consumer products. This is the most comprehensive program in any state to regulate chemicals that have been linked to cancer, hormone disruption and other effects on human health and will have a significant impact on potentially regulated chemical and consumer product companies. Additionally, other states and federal regulators have been monitoring California’s green chemistry proposals, and in particular these measures. The signing of AB 1879 and SB 509 is expected to spark introductions of similar bills around the nation in the coming 2009 state legislative session.

Background

In the past, California has largely left the regulation of chemical products to the United States Environmental Protection Agency (US EPA) under the Toxic Substances and Control Act. California’s Proposition 65, which is primarily a right-to-know statute, stops short of actually regulating chemical products. Following years of growing demand for increased product regulation, California launched a “Green Chemistry Initiative” – a multi-stakeholder dialog exploring new methods of informing the public about chemical hazards and possible changes to consumer protection laws. (See http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/SAP.cfm) AB 1879 and SB 509 are the first two substantive pieces of legislation adopted as part of the Green Chemistry Initiative, and they establish a rigorous new regulatory regime for chemical products in California.

AB 1879: Hazardous Materials and Toxic Substances Evaluation and Regulation

AB 1879, sponsored by Assemblyman Mike Feuer (D-Los Angeles), embraces a multimedia, life-cycle approach to regulating chemical substances. By January 1, 2011, the Department of Toxic Substances and Control (DTSC) must adopt regulations to establish a process by which chemicals or chemical ingredients in products may be identified and prioritized for consideration as being “chemicals of concern.” State regulators are directed to inventory the most dangerous, widespread chemicals first and control them at the manufacturing stage, before they are handled in workplaces, incorporated into products or released into air and water. Under AB 1879, the factors that DTSC must consider include:

• the volume of the chemical in commerce in California
• the potential for exposure to the chemical in consumer products
• potential effects on sensitive subpopulations, including infants and children

Once chemicals of concern are identified and inventoried, the law authorizes DTSC to regulate the chemicals that pose known hazards to consumers through development of criteria by which the chemicals and alternatives may be evaluated. The criteria will include, but are not limited to, the traits, characteristics and endpoints that are part of the clearinghouse developed under SB 509 (discussed below). AB 1879 creates a process for reviewing product hazards, assessing potential alternatives, and taking the necessary steps to protect the public and the environment. Actions that are authorized under the law include: further study, labeling or other product information measures, take back requirements, restrictions on use and product bans. AB 1879 requires DTSC to establish a Green Ribbon Science Panel to advise the department and the California Environmental Policy Council (Council).

Significantly, AB 1879 establishes multimedia life cycle evaluation conducted by affected California agencies (including but not limited to the Office of Environmental Health Hazard Assessment (OEHHA), and Department of Industrial Relations) and coordinated by DTSC. The evaluation will be based on best available data and include impacts associated with:

• air pollution emissions, including ozone forming compounds, particulate matter, toxic air contaminants and greenhouse gasses
• contamination of surface water, groundwater and soil
• disposal or use of the byproducts and waste materials
• worker safety and impacts to public health
• other anticipated impacts to the environment

Once DTSC provides notice that it intends to adopt regulations, the Council is directed to complete an evaluation within 90 days. The Council must determine whether the proposed regulations will cause a significant adverse impact on the public health and/or the environment, or if alternatives exist that would be less adverse. The DTSC will then have 60 days to revise the proposed regulations if it receives a notification of significant adverse impact from the Council.

SB 509: Toxic Information Clearinghouse

A companion law, SB 509, sponsored by Senator Joe Simitian (D-Palo Alto), directs the DTSC to create a scientific clearinghouse for information on the effects of chemicals on health and the environment. The Toxics Information Clearinghouse created by SB 509 will be the depository for information that DTSC solicits and obtains from numerous sources in California, from other states and throughout the world to create a database of chemical data. The data must comply with standards for data quality and test methods developed by the DTSC.

SB 509 specifically calls on DTSC to make the database readily accessible to consumers through a Web site. Information will also be provided by the OEHHA which is directed under the measure to evaluate and specify the hazard traits and environmental and toxicological end-points of chemical substances included in the clearinghouse. These evaluations and recommendations by OEHHA must be completed by January 1, 2011.

Conclusion

AB 1879’s multimedia lifecycle evaluation of chemicals will create a new regulatory regime in California. This law will allow DTSC to regulate chemicals used in products, departing from the DTSC’s traditional role which was focused on waste. The new regulations may impose labeling requirements, take back systems, and/or restrictions on use of certain chemicals in consumer products. Companies interested in being a part of the debate regarding the hazard traits and environmental and toxicological end-points included in the Toxics Information Clearinghouse created under SB 509, should participate in the OEHHA public workshops and submit comments during the evaluation of chemicals.

We note that public involvement is encouraged in both AB 1879 and SB 509 and we recommend that the chemical and consumer product companies expected to be regulated under these measures engage in the public process. Additionally, we recommend that potentially regulated companies provide data and evidence regarding the traits, environmental and toxicological end-points, and information on possible alternatives and work proactively with the department and Council to stay ahead of the curve.
Finally, we note there is a strong likelihood that the US EPA and other states will follow the lead of California’s increased oversight and regulation of chemicals in consumer products. The California Green Chemistry Initiative, through the enactment of AB 1979 and SB 509, should be viewed as just the beginning for increased chemical and product regulation in the U.S.

We look forward to helping clients navigate in this new regulatory arena.

For more information, contact:

Heather Bowman
415.743.6942
heather.bowman@hklaw.com
toll free: 1.888.688.8500

Elizabeth Lake
415.743.6969
betsy.lake@hklaw.com

Andrea Sumits
415.743.6948
andrea.sumits@hklaw.com

About the Environment Practice