The chemical process
Ever use a waterproofing spray to protect your shoes? It might well have contained fluoropolymers, Teflon-like chemicals that can cause inflammation of the lungs and lead to a host of respiratory problems. Speaking of Teflon, don’t overheat that nonstick frying pan — it could release a hazardous substance if left empty for too long on a burner. And don’t get us started on the chemicals in packaging that can leach into your food, such as 2-methylnaphthalene, which recently prompted Kellogg’s to recall 28 million boxes of cereal after consumers detected a strange taste and odor in their Froot Loops.
Increased public awareness of the potential dangers of such compounds has prompted a nationwide effort to better track and study the 83,000 chemicals registered with the federal government for commerce, most of which haven’t been adequately tested for health effects. California is at the forefront of this movement. Two years ago, lawmakers here approved the Green Chemistry Initiative, spurring creation of a database of harmful compounds and empowering regulators to restrict their use. With the law slated to go into effect in 2011, the state Department of Toxic Substances Control is scrambling to finalize its green chemistry regulations — a process wracked by technical challenges and policy disagreements. Amid a tug-of-war among manufacturers, environmentalists, scientists and policy makers, there’s a danger that the initiative could falter.
That would be bad for just about everybody. Rising rates of autism, low sperm counts and other reproductive problems, immune disorders and other woes have been traced to environmental sources such as manufactured chemicals, which until now have mostly been assumed safe until a clear link to illnesses has been shown. New laws encouraging manufacturers to find nontoxic alternatives are overdue.
In June, state regulators released draft rules for the green chemistry program. They were subsequently slammed by the Green Chemistry Alliance, a coalition of business groups from a diverse range of industries that would be affected by the regulations — including the Alliance of Automobile Manufacturers, the American Chemistry Council and the California Restaurant Assn. Last month, the alliance put out a 22-page letter listing its concerns and complaining that the regulations would threaten trade secrets and impose burdensome costs. “At a time when California needs desperately to kick-start its economy by creating jobs,” it asserted, “these draft rules as proposed impose layer upon layer of additional cost on companies, impede innovation and technology transfer, and drive product development out of the state.”
The businesses have some legitimate concerns, especially when it comes to trade secrets. One of the trickiest jobs for regulators is to balance the demands of environmentalists and consumers, who want full access to reports analyzing whether there are safer alternatives to hazardous chemicals, and industry, which must safeguard its proprietary formulas. We’d favor more transparency than is currently envisioned, especially because information that would compromise trade secrets could be redacted from publicly accessible reports. Without public scrutiny, there’s no way to tell whether public health is being adequately protected.
Other serious flaws in the regulations as drafted have been pointed out by the Green Ribbon Science Panel, a group of experts assembled to advise the state on scientific matters, and Assemblyman Mike Feuer (D-Los Angeles), the author of the bill (AB 1879) that created the Green Chemistry Initiative. Their criticisms have merit, and three in particular should be addressed by the Department of Toxic Substances Control, or DTSC, before it finalizes the rules:
• The list of high-priority chemicals is too narrow. A critical component of the initiative is the compilation of a list of chemicals known to harm people or the environment. Under the regulations, if a business wants to use or sell products containing such “chemicals of concern” in California, it has to conduct an “alternatives analysis” examining whether there are safer options. State regulators can also take action against products containing these chemicals, such as requiring warning labels or even banning them. But the initial list will be short, containing only chemicals listed in three existing databases that scientists consider inadequate. It should be broadened, perhaps including substances being tracked under a similar green chemistry program undertaken by the European Union.
• The timelines are too open-ended. The regulations contain few built-in deadlines, meaning the process of conducting alternatives analysis or updating lists of dangerous chemicals could drag on indefinitely. Further, there’s no way to fast-track the process for chemicals that are already known to be highly toxic and for which safer alternatives are known to exist. “It could be years before even notoriously harmful chemicals like lead and cadmium are acted upon,” complains Californians for a Healthy and Green Economy, a coalition of environmental and community groups, in a letter sent to Gov. Arnold Schwarzenegger last month. Feuer suggests that companies be given a maximum of 18 months to study alternatives.
• The minimal concentration standard is arbitrary. If a chemical’s concentration in a product is less than 0.1%, it is exempted from regulation unless DTSC officials decide otherwise. But that standard has little basis in science; some chemicals are highly dangerous at much lower concentrations. Industry groups lobbied hard for the concentration minimum, but experts say it would compromise the entire initiative. It would be far wiser to look at each chemical on a case-by-case basis and do away with the minimum threshold.
The new regulations will be burdensome on industry — and even more so if the state approves the recommendations we’ve listed here — but they should also pay dividends by lowering healthcare bills and environmental cleanup costs, as well as spawning a new industry dedicated to developing safer chemicals. And though it’s true that California can hardly afford to chase away employers as unemployment rates soar, they probably wouldn’t have much to gain by fleeing the state. Not only are other states crafting similar laws, but the U.S. Environmental Protection Agency is compiling its own “chemicals of concern” list, and there are moves in Congress, most notably a bill from Sen. Frank R. Lautenberg (D-N.J.), to create a federal green chemistry process similar to California’s.
Given that California’s regulations could serve as a template for lawmakers across the country — a fairly typical pattern when it comes to environmental laws — it’s very important to get them right. State regulators aren’t quite there yet.