• California's New Chemical Laws: Moving Towards REACH
  • October 31, 2008 | Author: Margaret Anne Hill
  • Law Firm: Blank Rome LLP - Philadelphia Office
  • On September 29, 2008, California enacted two laws which collectively establish a comprehensive program (the “Green Chemistry” program) to reduce or eliminate chemical hazards in consumer products and the environment. No other state has adopted such a comprehensive chemical regulatory program. The combined laws are designed to create a mechanism for the review of approximately 80,000 chemicals sold, used, or distributed in the state. These laws will have a wide-ranging impact on businesses and industries that operate or conduct business in California since the end result may be either the restriction or prohibition of chemicals used in the state.

    The first law, known as Senate Bill No. 509, requires the California Environmental Protection Agency Department of Toxic Substances Control (“DTSC”) to create an internet-based “Toxic Information Clearinghouse” for the collection and dissemination of the chemical hazard information that will be developed under the “Green Chemistry” program. The second law, known as Assembly Bill No. 1879, requires the DTSC to develop and adopt regulations to both identify and prioritize chemical ingredients in consumer products that may be considered a chemical of concern and to reduce public exposure to those chemicals. Prior to approval of a regulation concerning a specific chemical or chemical ingredient, a “multimedia life cycle evaluation” must be conducted to identify and evaluate whether the chemical or chemical ingredient’s production, use, or disposal has a significant adverse impact on public health or the environment. This evaluation must also include consideration of alternatives to the chemical or chemical ingredient that may have less adverse impact. The California Environmental Policy Council must review each “multimedia life cycle evaluation” to determine if a significant adverse impact is present and whether DTSC should take action to mitigate that impact. Following the evaluation of a chemical or chemical ingredient, the DTSC may implement regulatory action and then decide to: permit the chemical; restrict the continued production, use, or disposal of the chemical in the state through labeling, access, or management requirements; or ban the production, use, and disposal of the chemical completely.

    DTSC is required to develop a “Green Ribbon Science Panel” to provide scientific and technical advice in connection with the development of the chemical regulations. In this regard, the law adopts a novel approach within the United States, by requiring DTSC to consult with other state and federal agencies, as well as other nations, to identify and develop information on chemical hazards. Senate Bill No. 509 not only requires DTSC to seek information from state and federal agencies and other nations to identify data for inclusion in the Clearinghouse, but also requires the facilitation of regional, national, and international data sharing arrangements. Assembly Bill No. 1879 requires DTSC to consult with other nations, state and federal governments and agencies that have already undertaken similar chemical prioritizations and evaluations as DTSC moves forward with conducting the “multimedia life cycle evaluation” that identifies the presence of a significant adverse impact on human health or the environment.

    Assembly Bill No. 1879 contains provisions to address the obvious concerns regarding public dissemination of trade secret information that a chemical manufacturer or testing laboratory may have if asked to release information to DTSC as part of the Agency’s evaluation of a chemical or chemical ingredient. The law allows a company to identify the information submitted to DTSC as a trade secret which cannot be released to the public. However, any information, regardless of its trade secret designation, may be exchanged between public agencies. In addition, if a member of the public requests the release of the trade secret information, DTSC has the authority to determine whether the requested information should be released. The company claiming the trade secret designation must then obtain either a declaratory judgment or preliminary injunction in court prior to the release of the information. However, a company may not assert a trade secrets claim in connection with the information pertaining to the “hazardous traits of a chemical or chemical ingredients.”

    In conclusion, California’s new comprehensive program is more expansive then the existing federal law that regulates chemicals—the Toxic Substances Control Act (“TSCA”)—that was enacted 32 years ago. TSCA grants EPA the authority to require the testing of any chemical substance or mixture but requires EPA to prove the chemical is toxic before requesting data from manufacturers. The new laws are not, however, as expansive as the European Union’s new chemical regulation known as the “Registration, Evaluation, Authorization and Restriction of Chemicals (“REACH”) that requires the pre-registration of all chemical products and substances that will be sold, used, and distributed in the markets in the European Union. Importantly, California’s chemical program may be a precursor to how TSCA may be amended by the next Congress.