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April 20, 2013
Dan Morain: California pushes 'green chemistry'

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(April 20) What's a chemical company to do?

Buckle up. Once again, California is heading off on its own, this time decreeing that manufacturers of consumer products find alternatives to ingredients that are linked to cancer, are reproductive toxins or otherwise despoil the planet.

"Chemicals are not going away, but they need to change," said Department of Toxic Substances Control director Debbie Rafael, who is overseeing California's "green chemistry" program.

That's only one of the chemical industry's fights in California. The Office of Environmental Health Hazard Assessment recently declared that bisphenol A, a chemical commonly known as BPA used to coat the insides of food cans and other common products, is "known to the state to cause reproductive toxicity."

The American Chemistry Council, the main industry trade group, has sued to reverse the listing. The trade group also is battling California's effort to eliminate a type of flame retardant from furniture, amid evidence that the compound is linked to various maladies perhaps including autism.

Then there is the Legislature. A Senate committee last week approved bills to ban plastic bags and require that fast food containers be recyclable, despite objections from chemical and plastics manufacturers.

An Assembly bill to be heard later this month seeks to reduce plastic in rivers, lakes, beaches and oceans by 95 percent by 2025. Manufacturers would need to come up with plans to make that happen, or face fines for negligently failing to comply.

It's all a prelude for green chemistry. Entering a void left by federal inaction, the California Department of Toxic Substances Control is in the final stages of adopting regulations for its Safer Consumer Products program.

Almost five years in the making, the regulations run 109 pages, and will apply "to all consumer products placed into the stream of commerce in California," though there are exceptions for food, some dental products, pesticides, pharmaceuticals, and mercury-containing light bulbs, all of which are regulated to one degree or another.

Green chemistry is a grand experiment, the sort of regulatory adventure for which California is renowned or notorious, depending on your view. Other states won't be embarking on such efforts. But if California forces reductions in toxins in consumer products, the entire nation would benefit.

The program began with 2008 legislation signed by then-Gov. Arnold Schwarzenegger requiring that the Department of Toxic Substances Control analyze chemicals in commerce to determine their toxicity.

There are 84,000 such chemicals, too many for any bureaucracy to assess. So the department has homed in on "priority products." To attain that unwanted status, the regulations say, a product must have the potential for "one or more exposures to contribute to or cause significant or widespread adverse impacts."

Using lists compiled by agencies in California and other states, the U.S. and Canadian governments and the European Union, the department identified 1,200 toxic chemicals, though Rafael said the list will be whittled down to 230.

In extreme instances, the state could ban chemicals. But short of that, the 2008 law "fundamentally changes the question that manufacturers need to ask if they want to sell products in California," Rafael said.

"The question used to be: 'Is it legal?' " she said. Yes, it's legal to add formaldehyde, a carcinogen, to carpet and fingernail polish. But in the new world of green chemistry, manufacturers should undertake an "alternative analysis" to determine whether there are safer alternatives.

"It is not new to California. But we are institutionalizing it in the regulatory process," Rafael said.

Industry is squawking. Some company somewhere makes every one of the "priority products" and has a stake in its continued use. They will sue to block the state's effort. And lobbying is getting more intense as the department nears its expected October date for completing the regulations. Some legislators are open to the arguments.

The original legislation passed by wide margins, receiving "yes" votes from 57 of 80 Assembly members and 25 of 40 senators. But that was way back in 2008.

Fewer than 20 of 82 legislators who voted for the bills remain in the Legislature. The authors, Assemblyman Mike Feuer and Sen. Joe Simitian, were termed out last year. In an institution with a short institutional memory, there is little allegiance to what happened five years ago.

Manufacturers of jewelry, home appliances and food packaging have asked for exemptions. The Alliance of Automobile Manufacturers is finding lawmakers sympathetic to the argument, made with some justification, that carmakers should be exempt because they're already regulated by the federal government and California Air Resources Board.

"I support efforts to keep a safe and healthy environment. We also have to be pragmatic," said Sen. Ricardo Lara, a Los Angeles Democrat carrying the automakers' bill. "I'm concerned that more regulation or over-regulation is going to negatively impact this fragile industry."

California has been here before. Over the decades, the state has cut tailpipe emissions and forced gasoline reformulation, has banned smoking in public places and imposed energy efficiency standards on television sets, all while Congress dithered.

In Washington, Senate Democrats have introduced legislation to update the Toxic Substances Control Act, a 1976 law that has never lived up to its name.

The American Chemistry Council is a lobbying heavyweight, having spent more than $9 million to keep Congress in line last year. Congress is unlikely to pass anything opposed by the chemical industry.

From California's perspective, congressional gridlock probably is best. Republicans insist that any legislation pre-empt states from adopting green chemistry rules.

"Industry has blocked progress on reform nationally," said Andy Igrejas, director of the Washington, D.C., advocacy group Safer Chemicals, Healthy Families. "That drives the states to act."

It also will drive consumers to act. Igrejas' group has organized a petition urging retailers to remove products that contain hazardous chemicals. That's one immediate solution. No parent wants their baby crawling on carpets that contain formaldehyde or snuggling on couches laced with toxic flame retardants. Green chemistry aside, manufacturers need to answer to the people who buy what they sell.

Follow Dan Morain on Twitter @DanielMorain.

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