Legal Alerts

On December 16, 2008, the California Environmental Protection Agency (“Cal EPA”) released the Green Chemistry Initiative (“GCI”) Final Report.  The Final Report identifies policies to eliminate or reduce the use of toxic substances in the design, manufacture and application of chemical products.  Instead of concentrating on storing and disposing of hazardous waste, the Final Report identifies the following six-step strategy to promote use of safer, sustainable chemicals and eliminate the use of toxic compounds in the first place: 

1.  Expand pollution prevention programs to more business sectors and refocus additional resources on prevention rather than clean up.

2.  Develop Green Chemistry education and training programs.

3.  Create the first in the nation, online product ingredient database and require manufacturers to disclose non-confidential information regarding products sold in California.  The database would allow consumers to access a list of the chemical ingredients for an individual product.

4.  Create an online toxics clearinghouse to help prioritize chemicals of concern and identify existing data gaps regarding hazardous chemicals.

5.  Accelerate the development of safer products by creating a process to evaluate the use of chemicals and alternatives to ensure product safety and reduce or eliminate the need for chemical-by-chemical bans.

6.  Move toward a "cradle-to-cradle" economy by 2050 that will produce “benign-by-design” products and establish a California green products registry.  Ultimately, this registry would be available to consumers while they are shopping and would provide information regarding a product's environmental footprint.

Although the Final Report was only released this week, the strategies recommended by the GCI are already being implemented.  On September 29, 2008, Governor Arnold Schwarzenegger signed Assembly Bill 1879 authorizing the Department of Toxic Substances Control (“DTSC”) to identify and prioritize chemicals of concern, evaluate alternatives and specify regulatory responses.  The bill also allows DTSC, with advice from a green ribbon science panel, to establish regulations necessary to advance Green Chemistry in California.  Specifically, it empowers DTSC to establish labeling requirements and ban the use of certain chemicals in consumer products.  The Governor also signed Senate Bill 509 on September 29, 2008, which establishes an online toxics information clearinghouse to provide public access to information on the toxicity of chemicals.  The State has until January 1, 2011 to develop the regulations necessary to implement the two bills.

The Final Report could result in a significant expansion of existing environmental law depending on how the recommendations are implemented.  The State is currently required to publish a list of chemicals known to cause cancer, birth defects or other reproductive harm under the Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65.  Proposition 65 further requires businesses to provide notice before exposing anyone to a listed chemical.  Proposition 65’s list covers hundreds of naturally occurring and synthetic chemicals, including additives or ingredients in pesticides, common household products, foods, drugs, dyes, and solvents. 
 

In contrast, the Final Report recommends the creation of two separate lists - one that identifies all product ingredients and another that catalogs hazardous ingredients.  The creation of the first database would significantly expand beyond Proposition 65’s reach by requiring businesses to disclose all chemical ingredients in products sold in California, including nanomaterials, in addition to those that are known carcinogens.  Other than a safeguard for trade secrets, there are no limits or exceptions to the listing requirement identified in the Final Report’s third recommendation.  The Final Report is also silent with respect to any timing requirement.  Proposition 65 only requires the State to update its list annually.  However, the Final Report could be interpreted to require businesses to maintain up-to-the-minute information regarding product ingredients.  
 

The extent of the Final Report’s second list requirement for a hazardous substances clearinghouse may greatly overlap with the requirements of Proposition 65.  The Final Report even suggests using Proposition 65 as a starting point for creating the clearinghouse.  The extent of this list will be better known once the State’s Office of Environmental Health Hazard Assessment identifies the data that must be included in the clearinghouse as authorized by SB 509.  Since the Office of Environmental Health Hazard Assessment has until January 1, 2011, to establish this criteria, businesses and other stakeholders should consider participating in the State’s decision-making process to help determine what chemicals, ingredients and other data are included in the clearinghouse.

Like Proposition 65, the recommendations of the Final Report will probably increase costs for entities doing business in California.  It is not clear how programs identified in the Final Report will be funded.  State government costs could be supported from fee-based special funds or the government may seek funding from specific industry sectors. 

However, businesses that adopt the green practices outlined in the Final Report may benefit from reduced liability and insurance payments, reduced regulatory burdens and reduced hazardous waste clean-up costs.  Additionally, at a time when green businesses have reached a level of mainstream popularity, businesses that comply with the recommendations may even benefit from greater sales.  Those that do not comply with the recommendations may face increased financial penalties and additional litigation risks.  

           The Final Report can be viewed at www.dtsc.ca.gov/greenchemistry.