Opportunities and Challenges Await Implementation of California’s Green Chemistry Initiative
- November 11, 2009
- Paladin Law Group® LLP
- 0 Comments
By Edward L. Quevedo and John R. Till
Introduction and Overview
California has long been viewed as a leader in the development of policies and regulations that create economic development opportunities while enhancing protection of human health and the environment. The new Green Chemistry legislation – supported by industry – was signed into law last year and is a prime example of this kind of leadership. The legislation will ultimately lead to safer and more healthful consumer products of all kinds, and will simultaneously create significant opportunity for entrepreneurs to develop alternatives to some of the most toxic chemicals now in use in industry.
Enacted as AB 1879 and SB 509, the Green Chemistry legislation aims to implement a new approach to the management of chemicals and other hazardous materials used across industry. Rather than address toxicity and risks to human health and the environment from these substances after they are produced and in the stream of commerce, Green Chemistry takes the preventative approach and requires that these issues be addressed at the product design stage.
The idea is to design-in environmentally friendly attributes and substances at the front-end of product development; “benign by design.” California’s Green Chemistry legislation represents part of a global trend toward such regulatory models. The states of Massachusetts and Michigan, among others, are considering using Green Chemistry as part of their regulatory tool kit. And the European Union and Canada have already adopted means to regulate the use of hazardous chemicals in products through regulatory tools such as the European REACH Directive. However, unlike these approaches which focus on the chemicals, California’s legislation and regulations are focused on the consumer products.
Potential Opportunities and Challenges
There is no question that a law as broad sweeping as Green Chemistry will present a challenge to industry. But these approaches also portend many benefits to industry, society, and future generations:
- By mandating substitution of alternative, less harmful chemistries and substances in manufacturing, Green Chemistry will spawn a new age of innovation and research and development in the chemicals and product manufacturing sectors, creating thousands of new jobs and opening up new markets for the sale of the resulting newly formulated substances. This will drive important new economic growth, and create hundreds of new and compellingly interesting high-value jobs here in California.
- Through the means of design-based analysis, Green Chemistry will reduce the risks of exposure of employees to harmful chemistries in manufacturing environments, driving down manufacturing costs and elevating the level of worker protection and well-being.
- Eliminating the most toxic and harmful chemicals from use in manufacturing will also drive down the heavy regulatory and financial burden on industry resulting from storage, disposal, and long-term liability for management of hazardous wastes resulting from manufacturing activities.
Origins of Green Chemistry
The foundations of Green Chemistry are rooted in principles of industrial process and product design. Before consumer products ever reach retail stores, hundreds of product and industrial designers, process and chemical engineers, research scientists, and many others in the development chain have their say in how the products will look, feel, perform, and operate. Green Chemistry aims to equip these workers with a new tool book, based on 12 principles of Green Chemistry first articulated by Paul Anastas and John Warner in their 1998 text, Green Chemistry: Theory & Practice:
Prevent waste rather than treating it or cleaning it up;
Incorporate all materials used in the manufacturing process in the final product;
Use synthetic methods that generate substances with little or no toxicity to people or the environment;
Design chemical products to be effective, but reduce toxicity;
Phase-out solvents and auxiliary substances when possible;
Use energy efficient processes, at ambient temperature and pressure, to reduce costs and environmental impacts;
User renewable raw materials for feedstocks;
Reduce chemical intermediates and blocking agents to reduce or eliminate waste;
Select catalysts that carry out a single reaction many times instead of less efficient reagents;
Use chemicals that readily break down into innocuous substances in the environment;
Develop better analytical techniques for real-time monitoring to reduce hazardous substances; and
Use chemicals with low risk for accidents, explosions, and fires.
These are ambitious goals for product manufactures, industry and chemical manufacturers which are currently on an expedited time frame. Green Chemistry aims to jump-start this process in the interest of improving the safety of products and reducing the risks of use of chemicals in the manufacturing processes used in or during the making of consumer products to be used, sold or leased in California. The opportunities embedded in each of these elements of Green Chemistry, however, should not be overlooked. Industries and companies that develop strategies to rework the way they design, manufacture and develop consumer products or at least the use of chemicals of concern in their process will obtain a commercial advantage over those who slowly or reluctantly engage in the Green Chemistry process, as consumer products which do not provide the information may be banned from the California market.
The Legislative Details
The first of the two Green Chemistry statutes, AB 1879 establishes a process for California to systematically identify chemicals of concern to human health or the environment, and gives the Department of Toxic Substances Control (“DTSC”) authority to regulate such chemicals in consumer products. It creates a Green Ribbon Science Panel made up of experts to provide advice on scientific matters, chemical policy recommendations and implementation strategies, as well as ensuring implementation efforts are based on a strong scientific foundation. The bill expands the role of the Environmental Policy Council, composed of heads of all California EPA boards and departments, to oversee critical activities related to the implementation of the Green Chemistry program.
The second statute, SB 509, establishes a clearinghouse to provide access to vital information that citizens, consumers, workers, institutions and businesses need to make sound decisions about chemicals and chemical products they make, use, buy or sell. DTSC is authorized by SB 509 to establish this clearinghouse for the collection, maintenance, and distribution of specific chemical hazard traits and environmental and toxicological end-point data. Finally, the legislation requires the California Office of Environmental Health Hazard Assessment (“OEHHA”), by January 1, 2011, to evaluate and specify the hazard traits and environmental and toxicological end-points and any other relevant data that are to be included in the clearinghouse.
The legislation targets “chemicals or chemical ingredients in consumer products.” The chemicals which will receive attention are called “chemicals of concern.” The regulations adopted under this legislation, which are currently in development at DTSC, will define these key terms and set the scope of the products and substances regulated by the Green Chemistry initiative.
The tasks taken on by this legislation are enormous. The vast number of consumer products produced and sold in California, and the hundreds of chemicals used in their manufacture, constitute a huge listing of potentially regulated goods and substances. DTSC is actively seeking this public input, which commenced during 2007 and 2008 as the drafting legislation and initial regulatory development process began. It will be critical for potentially affected companies and industries to engage actively in the regulatory development process.
Regulatory Development, Public Involvement, and Other Key Planning Steps
In October of this year, DTSC published its Straw Proposal for the regulations to implement the Green Chemistry laws. A copy of the Straw Proposal can be found on the DTSC website: http://www.dtsc.ca.gov.
It is critical for all stakeholders, including non-profit associations, individuals, companies and industry groups, to weigh in on the development and evolution of these regulations. Issues to be determined will include the following, among others:
- How “consumer products” will be scoped and defined;
- How “chemicals of concern” will be scoped and defined;
- The timelines and processes, including test methods, for evaluating the relative risks of chemicals of concern; and
- The timeline for compliance and enforcement under the regulations.
In addition to weighing in during the regulatory development process, businesses should begin taking other preliminary steps to prepare themselves for the emergence of compliance responsibilities under the regulations. These can include the following:
Developing a list of the chemicals integrated into products or processes;
Identifying suppliers of these chemistries;
Commencing a dialogue with suppliers to ensure they are tracking the Green Chemistry developments, especially if they are not located in California;
Examining product development and product introduction processes to determine where in these processes the best opportunities exist for consideration of changes in product development, formulation and manufacturing to accommodate chemical substitution activities which will be driven by the Green Chemistry statutes and regulations.
The emergence of Green Chemistry will unquestionably present challenges to industry. Businesses will have to develop strategies that analyze the impact of their entire supply chain and the chemicals used in their products – from building materials to baby bottles and almost everything in between. Many commercial and social benefit opportunities are presented by the Green Chemistry developments; furthermore, the processes of supply chain collaboration are rapidly advancing in order to meet the demands of this new legislation.
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