NPCA and CPC Go on Record for Proposed California Green Chemistry Bills

Late August saw a flurry of activity in the California legislature around Assembly Bill 1879 and Senate Bill 509, measures which will lay the foundation for the Green Chemistry Initiative by creating a web-based, comprehensive statewide program for managing chemicals in products, and which, at this writing, were on a fast track to becoming law. These two bills, which easily passed their committees in both houses of the legislature, are "joined" and have the support of the governor, the administration, Republican and Democratic leadership, environmental groups, and some industry groups. In a letter to the bills' sponsors, NPCA and its California Paint Council (CPC) took a stance of "neutral with concerns" on the bills because the package is a vast improvement of the original bill touted by California's Department of Toxics Substances Control (DTSC); it is a science-based program; and it is chemical-based, not based upon consumer product categories, as originally conceived.

Specifically, NPCA and CPC expressed concern that the provisions germane to confidential business information in AB 1879 are not adequate to fully protect trade secrets related to paint and coatings products and require legal intervention immediately to ensure such trade secrets remain protected. Both expressed concern that such immediate intervention may be difficult, particularly for companies that are not based in California.

NPCA and CPC registered concern that AB 1879 grants very broad authority to DTSC to conduct investigations of ingredient chemicals and take action against consumer products that contain chemicals of concern. Moreover, they observed that both bills will leave almost all of the specific requirements that will be imposed on product manufacturers as a result of these new programs to the agencies as they develop regulations — yet-to-be determined and unknown regulations will define this program with little indication to manufacturers exactly what the scope of state authority will eventually be. Finally, NPCA and CPC maintained that AB 1879 should clearly state that a violation of the statute would be a civil violation.

It is important to note that AB 1879 is based on chemicals of concern, not every chemical, and the process to determine how to identify those chemicals of concern is yet to be determined. All estimates are that, given DTSC resources, it will take several years before this program and the SB 509 web listing of chemicals will be up and running. Apparently on the table for consideration as chemicals of concern are approximately 200 chemicals that Canada is now reviewing. However, DTSC expects to take a look at about two chemicals a year and their alternatives ― not a quick listing process. Additionally, both bills have very few specifics in them, leaving the majority of the processes to be determined in the regulations. Both CPC and NPCA will be actively involved in the regulatory process to implement these bills.

Summary of the Bills

AB 1879 requires DTSC, by January 2011, to 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. Pesticides and food are exempted.

The regulations adopted would establish a process that includes an evaluation of the availability of potential alternatives and potential hazards posed by those alternatives, as well as an evaluation of critical exposure pathways.

The regulations would be required to specify actions the DTSC may take following the completion of the analysis, including:

1. no action at all;
2. requirement to provide additional information needed to assess a chemical of concern;
3. labeling requirements;
4. restrictions on use of the chemical of concern in the consumer product;
5. prohibiting use of the chemical of concern in the consumer product;
6. requiring controlled access to or limit exposure to the chemical of concern;
7. requiring manufacturers to manage the end-life of a consumer product (recycling or responsible disposal);
8. requiring green chemistry challenge grants where there is no safer alternative; or
9. any other outcome the department determines that accomplishes the goal of green chemistry.

The bill requires the establishment of a Green Ribbon Science Panel to advise DTSC and the California Environmental Policy Council.

The bill also establishes a procedure for the protection of confidential business information submitted to the department. If the department determines that information should be made public, following a request for disclosure, the department will provide 30 days notice prior to releasing the information unless the submitter obtains a court order prohibiting such disclosure.

DTSC is required to reference and use, to the maximum extent feasible, available information from other nations, governments, and authoritative bodies that have undertaken similar chemical prioritization processes, in order to leverage the work and costs already incurred by those entities and to minimize costs and maximize benefits for the state's economy.

SB 509 requires DTSC to establish a Toxics Information Clearinghouse for the collection, maintenance, and distribution of specific chemical hazard traits and environmental and toxicological end-point data. DTSC would make the clearinghouse accessible to the public through a single internet web portal.

The Office of Health Hazard Assessment (OEHHA) is required, by Jan. 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.

DTSC will consult with other states, the federal government, and other nations to identify available data related to hazard traits and environmental and toxicological end-points, and to facilitate the development of regional, national, and international data sharing arrangements to be included in the clearinghouse.

Contact: NPCA's Heidi McAuliffe for more information.

Source: October 2008 Coatings, posted 9/16/08