Maureen Gorsen: Capitol Weekly Interview

As head of the Department of Toxic Substances Control, Maureen Gorsen has a key role in implementing Gov. Arnold Schwarzenegger’s Green Chemistry Initiative. This effort, begun in 2007 and written into law with two pieces of legislation in September, will seek to categorize thousands of chemicals used in products, weeding out the harmful ones for safer alternatives.

Tell me about the new Wiki site.

When a new law is passed, and we have a timeline to develop regulations until January, 2011, what usually happens is for about a year, the regulators sit in a room and debate issues and come up with drafts and they go back in forth with this whole process. When they finally get the draft looking like “this is how I think we’re going to implement the statute,” they start the formal rulemaking process.
The Wiki has three purposes. The first is to let outside people see that initial process. Second is to allow them to participate like they’re a reg (regulation) writer. There may be a lot of good thinking out there that doesn’t reside here, and we want to invite that in. Third, to speed up the process so we can get regs on the books by the end of the year.

It’s very aggressive, but people are in a hurry. They want to get safer things in everyday products. The problem with this alternatives analysis is that the idea is, no matter what we come up with, it will be the first generation. It’s going to be imperfect. I think our scientists and engineers, which is mostly what we have here, have a kind of bias towards perfection. Sometimes perfection can be the enemy of the good. The idea is to get some tool out there that we can use to make comparisons between things we know are toxic and other things that we think are less toxic, and get a tool that’s working, even if it’s not perfect.

I’ll give you an example. LEEDS certification is a type of lifecycle alternatives analysis tool. Buildings will go for green, gold, silver, platinum. But there’s a continual evolution in LEEDS standards. Right now you get one point for a bike rack and one point for a solar panel. Are those points equal? You know that the first tool we use will have imperfect values in it. You want to get the idea of using the tools into usage, then you want to get the improvement of the tool to become a yearly occurrence.

What is California doing that goes beyond what the European Union has done?
What the European Union has done has really created a great foundation for us, just like Canada has and Japan. They have gone through all the chemicals of concern out there and prioritized them and made lists. Canada and Japan have started testing some of those so that we know the toxicity. We’re going to create an alternatives analysis tool, but it’s only going to be as good as the data out there. We have a lot of data gaps. We stand on their shoulders.

The Wiki site says there are three possible approaches to identifying chemicals of concern.
Right before Christmas, we put on the Wiki the main four questions we felt the regs have got to answer, as well as a lot of the sub-questions. Now what is happening is about 47 people have started putting in there what they think the answer should be. This is not what we think the answer should be, this is what is developing.

The main four questions the regs have to answer are, one, what triggers the need for alternatives analysis? The trigger can be anything from a person having a concern to it has to be on authoritative bodies’ lists. What is the threshold? The second thing is, once the threshold is triggered, what are we requiring people to do? Third, based on this alternatives analysis, what do we do as a regulatory agency? What is it this analysis has to tell us to require ban, to require R&D, to require extended producer responsibility? Fourth, how do we enforce it?

Have environmental groups weighed in on which approach they think is better?
You’re way early. Here you have a law that just went into effect. We haven’t even had the first workshop on this. To the extent that this gets populated and people start telling us about what they think about the different options, that’s why we’re using a Wiki, to accelerate the process so we can get to the formal rulemaking process this year and get something adopted that is workable and widely accepted. This is a great start. If we had regs less than a month after a law took effect, those would be the faster regs the world had ever seen. If this really works, we may see other governments try this.

There has been an issue about whether legislators should be carrying chemical-by-chemical bans while the Green Chemistry Initiative is going on. There were some bills that were opposed by the administration and DTSC on these grounds. Why is it a problem to ban certain chemicals that have been shown to be of concern outside the Green Chemistry process?

Our department has two analytical chemical labs, in Berkeley and LA. Some of our scientists have been the first to look at biomonitoring result, to study breast tissue, peregrine falcon eggs, seal blubber. It was really the work done in our labs that identified penta and octa PBDEs as a serious problem.

In fact, I just had myself biomonitored, and I’m in the 95th percentile, of 2000 people studies across the nation, for penta and octa PBDEs in my blood. That bill (Chu, 2003), and it took effect in 2008. Our labs are now looking at the next generation of PBDEs. So you ban something, but you didn’t look at the alternatives. What’s coming in are these brominated BFRS. Some of these are worse than what is banned. What we’ve learned from industrial and academic chemists is, when you have a list of “bad,” a lot of times what people do is go to the shelf and pick something that’s worse. FireMaster and these new substitutes are worse than what was banned.
There seems to be an issue here outside of banning chemicals, which is the flame retardant standard for furniture in California, which as I understand it doesn’t exist in any other state. I know you don’t have the ability to overturn that unilaterally, that’s a Bureau of Home Furnishing decision, but it seems like you would have some influence.

The way government is set up in California is we are highly siloed. California is the only office of environmental protection in any state that has a separate air board, separate water board, separate DTSC. Even US EPA, its one entity. They have a much greater ability to do coordinated policymaking. If you set up an agency and this is your endpoint, this is what they focus on.

What’s beautiful about the green chemistry bills that passed in September is that for the first time — we’ve been in existence for 20 or 30 years, we’ve only been able to look at hazardous waste generated by facilities located in California—as of January 1, 2009, we now have the ability to look at toxic ingredients in all products sold in California. That’s huge. We’re going to be able to look at lifecycle, what is the best for the environment and public health. For the first time, one agency will have the ability to do multimedia analysis.

We think we will be able to propel the manufacturers of furniture and bedding to safer choices. And these may not be chemical choices, they may be product design choices. But until we get the regs enacted into statute, we don’t have the ability to tell anybody anything. Other people have all sorts of different standards, we’re not going to be evaluating those.

When will we start to notice a difference on store shelves?
I’m hoping by the end of the year.