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Green Chemistry: Breakthrough or bureaucratic dead end?
This analysis was written by EWG Executive Director Richard Wiles and Senior Analyst Renee Sharp.
This session the California Legislature considered no less than eight bills that would have banned or restricted individual chemicals or groups of chemicals in consumer products. Under the one-two punch of an intense lobbying campaign by the chemical industry and the public opposition of Gov. Arnold Schwarzenegger’s administration, all but one of the bills was defeated. The one that passed, Senate Bill 1313, a ban on the use of Teflon chemicals called PFCs in food packaging, was ultimately vetoed by the governor.
Banning chemicals through the legislative process has always been a clumsy way to advance public health policy. But there are times when it is necessary. In 1976, Congress banned PCBs as part of the Toxic Substances Control Act (TSCA). The flame retardant Deca-BDE was banned in several states beginning in 2006. This year Congress banned the plasticizers known as phthalates in children’s toys, following on the lead of several states, including California.
The growing wave of legislation in the states to ban individual chemicals is a direct response to a broken federal system. More than 30 years after its passage, TSCA is an abject failure. American babies are born pre-polluted with 300 chemicals in their bodies and no federal agency is doing anything about it.
In signaling their opposition to single chemical bans, many California legislators ducked behind the shield of the need for comprehensive chemical policy reform. They said they were voting against individual chemical bans but voting for Assembly Bill 1879 and Senate Bill 509, which the administration had turned into a framework for the Green Chemistry Initiative, a state plan for systematically evaluating chemicals for possible ban or restriction.
Schwarzenegger quickly signed the two bills, hailing them as ushering in “California’s Historic Green Chemistry Initiative.” He declared: “This bi-partisan package of environmental legislation propels California to the forefront of the nation and the world with the most comprehensive Green Chemistry program ever established.” A week later, when he vetoed SB 1313, he again pointed to AB 1879 and SB 509: “It is within this process that chemicals like PFCs should be addressed.”
This cheerleading would be a lot more encouraging if the bill had the substance to match. Instead of real chemical policy reform, 1879 is the product of strong-arm politics. It is a take-it-or-leave-it-deal written by the governor’s staff, forced on the Legislature and endorsed by the chemical industry.
It takes one important step forward, for the first time giving the state the right to regulate chemicals in consumer products. But it champions green chemistry at the expense of the basic health protections from chemical exposures that all Californians deserve. By passing this bill California has put vague notions of green chemistry ahead of health protections for its citizens, and in the process surrendered its leadership position on chemical policy reform.
Instead of banning dangerous chemicals, California is embarking on a multi-decade odyssey in search of green chemistry, with no hard deadlines, no public health mandate, and just about no money to pay for it.
No Health Standards
AB 1879 is a far cry from comprehensive chemical policy reform.
It does not establish a human health safety standard or public health goal for chemicals of concern or their prospective substitutes. It does not require that any health or safety data be generated on chemicals that may present significant risks to people. In fact, AB 1879 is completely devoid of any tangible commitment to protect the health of the people of California.
Instead the legislation requires the California Department of Toxic Substances Control (DTSC) to develop a process by which DTSC may identify priority chemicals of concern, and identify a range of possible actions that it might or might not take against these chemicals at some unknown date in the future. But in order even to propose such an action, the state must conduct a mind-numbingly detailed “life cycle analysis” that incorporates a least thirteen different environmental assessments, nearly all of which are completely irrelevant to the human health risks presented by the chemical.
Instead of protecting human health, AB 1879, with its mandatory raft of analyses, virtually guarantees that no action will be taken in California to prevent or limit exposure to even the most hazardous chemicals in commerce. No wonder chemical industry lobbyists threw a party when it passed.
These failings set AB 1879 apart from pioneering California statues like the California Clean Air Act, or the California Safe Drinking Water Act; laws that moved an entire nation to strengthen public health protections from pollutants. In contrast, this legislation will do quite the opposite, providing a statutory shield for chemical companies who want to delay health protections and preserve the status quo while bureaucrats and industry contractors ponder the problem.
It is no surprise that AB 1879 is embraced by the chemical industry. Like its favorite federal environmental law, TSCA, AB 1879 is certain to produce a monumental regulatory logjam, at great cost to the public, with no concurrent health benefits.
As its first requirement, Section 25252 (a), the bill states:
… On or before January 1, 2011, the department shall adopt regulations to establish a process to identify and prioritize those chemicals or chemical ingredients in consumer products that may be considered a chemical of concern…
The bill, however, does not require that any chemicals actually be named as chemicals of concern. And if some chemicals ultimately are identified, there is no requirement to do anything about it. There is simply a requirement that:
…..the department shall develop criteria by which chemicals and their alternatives may be evaluated.” Section 25252 (b) 1
Instead of action to protect the public health, the bill requires the DTSC to establish a process that includes a range of options for reducing exposure from the most dangerous chemicals, from doing nothing, to labeling, to balancing profits against pubic health, to adoption of so-called green chemistry.
(b) The regulations adopted pursuant to this section shall specify
the range of regulatory responses that the department may take
following the completion of the alternatives analysis, including,
but not limited to, any of the following actions:
(1) Not requiring any action.
(2) Imposing requirements to provide additional information
needed to assess a chemical of concern and its potential
alternatives.
(3) Imposing requirements on the labeling or other type of
consumer product information.
(4) Imposing a restriction on the use of the chemical of concern
in the consumer product.
(5) Prohibiting the use of the chemical of concern in the
consumer product.
(6) Imposing requirements that control access to or limit
exposure to the chemical of concern in the consumer product.
(7) Imposing requirements for the manufacturer to manage the
product at the end of its useful life, including recycling or
responsible disposal of the consumer product.
(8) Imposing a requirement to fund green chemistry challenge
grants where no feasible safer alternative exists.
(9) Any other outcome the department determines accomplishes
the requirements of this article.
Swamped in the Morass of Analysis
But perhaps AB 1879’s most elegant conceit is how the bill buries the critical human health risks posed by uncontrolled exposures to thousands of chemicals in consumer products, under an avalanche of theoretical analyses of chemical impacts on global warming, water quality, energy use, and disposal. While each of these issues is important, they are already covered by other statutes, whereas public exposure to and risk from chemicals in consumer products is not. By wrapping the human health threat posed by chemical exposure in the cloak of every environmental concern imaginable, the bill ensures that human health risks will be obscured and business as usual will prevail.
Mandatory Life Cycle Analysis
The program envisioned in the plan is anchored by a series of so-called life cycle analyses (LCA) that must be prepared for each chemical of concern and all of its alternatives, before a chemical could be restricted in any way. LCA purports to be a quantitative cradle to grave analysis of the total environmental impact of all aspects of a product’s life, from mining the minerals, to powering the production plant, through manufacturing, transportation, use of the product and disposal.
The bills spell out LCA requirements in detail, listing a minimum of thirteen different types of impacts, from water pollution to greenhouse gases, to product function and resource consumption that must be evaluated for every potential chemical of concern and its alternatives.
Section 25253 (a)
(2) The regulations adopted pursuant to this section shall
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.
This process shall include life cycle assessment tools that take into
consideration, but shall not be limited to, all of the following:
(A) Product function or performance.
(B) Useful life.
(C) Materials and resource consumption.
(D) Water conservation.
(E) Water quality impacts.
(F) Air emissions.
(G) Production, in-use, and transportation energy inputs.
(H) Energy efficiency.
(I) Greenhouse gas emissions.
(J) Waste and end-of-life disposal.
(K) Public health impacts, including potential impacts to
sensitive subpopulations, including infants and children.
(L) Environmental impacts.
(M) Economic impacts.
This elaborate, bureaucratic gauntlet of analyses and reviews would have to be performed before any chemical, however unsafe, might be restricted or removed from commerce. LCA is incredibly costly, dependent on data that are often not available, loaded with assumptions as a result, and ultimately subject to value judgments that can have great impact on the outcome of the analysis.
A 2006 report prepared for the U.S. EPA National Risk Management Research Laboratory summarized this situation this way:
Limitations of Conducting an LCA
Performing an LCA can be resource and time intensive. Depending upon how thorough an LCA the user wishes to conduct, gathering the data can be problematic, and the availability of data can greatly impact the accuracy of the final results. Therefore, it is important to weigh the availability of data, the time necessary to conduct the study, and the financial resources required against the projected benefits of the LCA.
LCA will not determine which product or process is the most cost effective or works the best. Therefore, the information developed in an LCA study should be used as one component of a more comprehensive decision process assessing the trade-offs with cost and performance, e.g., Life Cycle Management. [1]
AB 1879 ignores just about all of these important limitations. It does not acknowledge the substantial costs and resources needed to conduct a single LCA. It fails to take into account the fact that lack of data for any number of the analyses mandated in the bill will be a major obstacle to completion of the LCA, and it ignores that fact that as a result of data unavailability, assumptions will infiltrate every LCA and greatly affect the outcome.
Most important, according to the EPA “LCA will not determine which product or process is the most cost effective or works the best.” Yet the first requirement of the life cycle section of 1879 requires just that specific assessment:
25253 (a)(2)
This process shall include life cycle assessment tools that take into
consideration, but shall not be limited to, all of the following:
(A) Product function or performance.
Any number of peer-reviewed critiques of LCA reinforce these basic limitations:
The first stage in the analysis is quantitative comparisons of materials flows and transformations. Energy fluxes are important insofar as they involve materials (e.g., fuels, combustion products). This can be an extremely valuable exercise, if done carefully. However, the data required to accomplish this first step are not normally available from published sources. Theoretical process descriptions from open sources may not correspond to actual practice. Moreover, so-called 'confidential' data are unverifiable (by definition) and may well be erroneous. In the absence of a formal materials balance accounting system, such errors may not be detected. [2]
Arnold Tukker (1999), an LCA expert, has concluded that the underlying weaknesses of the LCA method are too great to withstand skeptical scrutiny:
“…I believe it will never be possible to solve controversial discussions about products with an LCIA [life cycle inventory assessment] method that is based solely on mathematical relations between interventions and protection areas. There are simply too many uncertainties, there is too much ignorance, and they can only be overcome by all kinds of subjective, subtle, and basically value-laden choices…” [3]
The current glacial pace of chemical review by the state’s resource-challenged public health agencies is perhaps the major failing of the present system, and given political and financial realities, creating a new, intensely bureaucratic, and as yet unfunded regulatory regime this bill will only heighten the logjam.
Even if California had unlimited funds and resources to ensure that chemical analyses could be performed at the pace needed to respond to the ubiquity of dangerous chemicals, and to ensure that the findings would be acted on promptly, the lack of any public health directive ensures that at the end of the process, no matter how dangerous the chemical, no health protections could be guaranteed.
Facing the Future
AB 1879 is now the law.
Many California environmental groups, including some of our closest allies, endorsed AB 1879 and applauded the governor’s signature. They rightfully point to the fact that the state now has authority over chemicals in consumer products, and feel that from their meetings with DTSC, they trust that the agency will act, not just study chemicals to death.
We hope they’re right. Unfortunately we see a likely future where, despite the best efforts and intentions of DTSC’s scientists, industry lobbyists will use the life cycle assessment process to delay action against chemicals even when risks are well established. This is how the industry uses TSCA, under which the EPA was unable to ban asbestos because the industry sued to challenge the validity of required studies. In California, manufacturers of the pesticide fumigant methyl bromide held off stricter regulations for at least a decade by repeatedly challenging tests by the Department of Pesticide Regulation.
How will the environmental and public health community respond to AB 1879? The agency is given until 2011 to even propose rules for the Green Chemistry process; will California take no action on toxic chemicals for two years or more?
It is incumbent on all of us to fight back by watchdogging DTSC closely. We must think strategically about how to force swift action by DTSC, or how to go outside the process, when a chemical poses imminent harm to Californians. One idea may be to sponsor legislation that orders DTSC to act on a particularchemical or product, although legislators and the governor could again hide behind the shield of Green Chemistry.
EWG is committed to doing all we can, and working with other environmental advocates, to ensure that this new system protects the health of Californians. But we think the deck’s been stacked.
References
[1] U.S. Environmental Protection Agency. Life Cycle Assessment: Principles and Practice. EPA/600/R-06/060. National Risk Management Laboratory. May 2006. http://www.epa.gov/nrmrl/lcaccess/pdfs/chapter1_frontmatter_lca101.pdf
[2] Ayres, R. 1995. Life cycle analysis: a critique. Resources, conservation and recycling. 14(3-4): 199-223. http://cat.inist.fr/?aModele=afficheN&cpsidt=2890588
[3] Tukker, A., Life Cycle Impact Assessment – Some Remarks. Life Cycle Impact Assessment of SETAC-Europe (Second Working Group – WIA-2). http://www.healthybuilding.net/pvc/CPA_EC_LCA_Critique.html#_edn1
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