In a recent opinion piece on this site, the acting director of the Department of Toxic Substances Control Maziar Movassaghi sought to alleviate the significant concerns of a consumer advocate who had written about the state’s troubled approach to implementing the Green Chemistry Initiative.
Those concerns detailed, among other things, how DTSC’s regulations seemed to lack focus and failed to provide a clear mechanism for ensuring the State’s efforts would be towards those chemicals and products with the greatest exposure risk to sensitive populations.
Mr. Movassaghi explained in response that the regulations did indeed focus on the greatest exposure risks because the process "enables" DTSC to "focus smartly as it improves our most common products."
While this may be, there remains substantial merit in the consumer advocate’s deconstruction of the Department’s rules and their extremely worrisome shortcomings.
Employers and business representatives saw potential for positive change in California’s approach to managing chemicals when Gov. Schwarzenegger signed Green Chemistry’s authorizing legislation. We were hopeful that California’s attempt at a new system of chemicals management would inspire innovation and rely on science, not politics, as the basis for decisions.
Today, that enthusiasm has disappeared. The regulations proposed by DTSC not only fail to deliver on the promises of the Green Chemistry Initiative, they threaten to undermine them. These rules will not inspire innovation, investment or, indeed, anything but uncertainty.
Here’s why.
As written today, the regulations give the Department near limitless discretion over the process that will be used to regulate consumer products and in so doing have created a regulatory environment fraught with uncertainty. No consumer or business could hope to understand from these regulations whether a given product or material will be subject to the long and expensive approval process.
The ambiguity inherent in the regulations can be read as implicating every chemical known to science as a toxic threat. This is not an overstatement. The Department will be looking to a vast list of toxic traits when determining whether a substance is to be regulated as a "chemical of concern." Every chemical we know of – including the ones we need to survive – exhibits at least one of these hazard traits at some level of exposure. So, the Department’s regulations would indeed allow for the regulation of any chemical and any product one can name.
Mr. Movassaghi would, of course, insist that DTSC has no such plans. And while we have no reason to doubt him, wouldn’t it be better to put such assurances explicitly in the regulations?
As it stands now, the regulations offer little explanation of how regulators will apply its prioritization standards or what process will be used to ensure that real risks are distinguished from imaginary ones. The Department says it will apply balancing factors to decide which materials and products should be subject to further review, but does not elaborate in much detail how it will do so.
All of this means the best answer the regulations can offer to questions from consumers and businesses is "maybe." Will a known carcinogen be treated with more urgency than a benign chemical that is, at worst, soluble in water? Maybe. Will the metals locked away in a solar panel’s circuitry be treated the same as metals in a piece of jewelry? Maybe. Will the rules apply to individuals who sell products at a garage sale or in an online auction? Maybe. Despite any reassurances from regulators, the proposed rules simply do not say one way or the other.
There are, however, at least two questions that can be answered with certainty.
Will investors and innovators run for cover when no one can say from one day to the next how the rules will be interpreted? Yes. Will consumers and/or taxpayers pick up the tab for the vast bureaucracy that will be needed to manage this? Yes again.
Mr. Movassaghi correctly states that the regulations "enable" the Department to focus smartly. Unfortunately, they also enable the Department to do precisely the opposite. What they do not do is require DTSC to operate in a way that makes consumers safer, inspires investment and encourages innovation.
Rather than create regulations that patch these worrisome holes, the Department is asking consumers, taxpayers and businesses to trust them. This is not a responsible approach.
If allowed to stand, the problems these rules will create in the marketplace and for consumers will long outlive any memory of the bold and exciting vision that once marked the launch of the Green Chemistry Initiative.