California’s Green Chemistry Initiative, launched by AB 1879 (Feuer, 2008) has been touted as an innovative move toward more effective regulation of chemicals in consumer products. It is intended to protect consumers, workers, and the environment while spurring development of safer alternatives that will be the foundation of a vibrant green economy.
But the Department of Toxic Substances Control’s draft regulations to implement the Initiative fall far short of meeting its worthy goals. In their current form, these regulations would perpetuate the worst flaws of an ineffective regulatory system: too weak, too slow, and stacked against the public in favor of industry.
In comments on the draft, nearly 50 environmental, public health, consumer, and worker safety advocates strongly objected to the lack of public participation and oversight, and the dominant control industry will have over the process. Their concerns were echoed by the Green Ribbon Science Panel, a group of technical experts in chemical science and policy set up to advise the program, and from a group of prominent scientists, including the author of the landmark University of California white paper that set the Initiative in motion.
The draft regulations will allow chemical companies and consumer product makers to keep hidden, as “trade secrets,” much valuable data on chemical hazards and safer alternatives. Companies, or their hired consultants, will be allowed to conduct their own assessments of safer alternatives. The completed alternatives assessments will not be made public. If a hazard determination is made, companies themselves will suggest the appropriate regulatory response.
This is a blueprint for a program that will be a closed conversation between industry and DTSC. Industry will have ample opportunity to influence, delay, or appeal decisions, and the resource-strapped Department will be ill-equipped to exercise oversight. Since the objective of the Initiative is to protect public health, it is a fundamental error to limit the opportunities for consumers to participate in the decisions that are supposed to protect them.
In their comments on the draft, ten members of the Green Ribbon Science Panel agreed: “Without public oversight of the conduct of alternatives analyses and implementation of regulatory responses, government and industry will not be accountable to the public, providing little reason for confidence in the decisions being made.”
The lack of public participation is troubling. But even worse, some of the draft regulations represent a step back from current science and existing standards:
• The list of chemicals to be regulated is limited to carcinogens and reproductive hazards in the Proposition 65 registry, ignoring other hazardous chemicals already recognized and regulated by the state, U.S. EPA, and the European Union.
• There is no fast-track process for dealing quickly with known “bad actor” chemicals, even those for which safer alternatives already exist. It could be years before notoriously harmful chemicals like lead or cadmium are addressed.
• The draft regulations say any product will be considered “safe” if it contains no more than 0.1 percent of a regulated chemical. This so-called de minimus level is equivalent to 1,000 parts per million, alarmingly high in a day when science has proven harm from chemical doses of parts per trillion. The state’s existing standards for cancer-causing substances in drinking water are an average of 300,000 times greater than the de minimus standard proposed by these regulations.
“We are concerned because California’s environmental standards often point the direction for the rest of the country, and the world,” wrote the second group of scientists, including Michael Wilson of UC Berkeley, author of the 2008 study that provided the framework for the Initiative. “The approach to de minimus concentration as outlined in the draft regulations could prove to be a backward step. If adopted, it could undermine efforts to protect public health in California, as well as in other U.S. states and internationally.”
Overall, the proposed regulations read much like a wish list for companies determined to block progress toward a new era of safer chemicals and products. Predictably, these companies are complaining that the regulations are too rigorous and unworkable – their standard operating procedure when facing increased scrutiny.
We don’t think these draft regulations are ready to be adopted without significant changes.
If California is going to put all of its eggs for regulating toxic chemicals in the Green Chemistry basket, and reduce the number of bills introduced seeking to ban or limit individual chemicals, the program must be scientifically rigorous, transparent, and open to the public.