Op Ed: California's new chemical laws: Good start, need work

 

 

Counterpoint:  California's new chemical laws: They fail to protect us

 

 California’s new laws are a concerted step forward and signal the state’s willingness to tackle the complexities of chemicals policy. No other state has taken this step, and 30 years of federal policy have failed to adequately protect human health or motivate investment in safer alternatives. With AB 1879 and SB 509, California has now entered this arena, building the initial architecture of a modern chemicals policy. On the other hand, these laws also risk being used as a diversion from taking action today on well-known chemical hazards. 
 

Although further action--including new legislation--is required to meet the goals of the new laws, they provide a reasoned response to several persistent problems. For example:

 

·                   To ensure that chemical regulations target substances that are in fact of public health significance, AB 1879 calls on state officials to consider the full scope of chemicals used in processes and products.

·                   To avoid the regrettable substitution of one hazard for another, AB 1879 requires lifecycle analyses of chemicals of concern.

·                   Targeting vulnerable groups historically overlooked by regulation, AB 1879 stipulates that the state’s Department of Toxic Substances Control consider the effects of chemical exposures on workers and sensitive sub-populations, such as children.

·                   SB 509 begins to shift information on chemical ingredients into the public arena. This seemingly simple act has the potential to give producers incentives to re-evaluate the potential health and environmental effects of their products.

 

For these and other reasons, these laws are ground-breaking. However, they are entering a chemicals policy obstacle course while nearly blindfolded by lack of data. The consequences of delaying action lie on one side and the pitfalls of hasty action lie on the other. The two bills do not address the entire policy landscape, which reflects the complexity of a chemical production system that has grown up amidst a relatively weak patchwork of state and federal laws.

 

California’s task is now to avoid repeating past errors. We will need to build the capacity to act expediently in eliminating known hazards while also constructing a more comprehensive framework, as articulated in these bills. This framework requires that we address new scientific and technical questions, such as 1) how to define a hazardous chemical and its safer alternative, 2) how to generate sufficient data to make more informed decisions, 3) how to conduct lifecycle assessments that are both rigorous and efficient, 4) how to make decisions in the face of scientific uncertainty, acting on the balance of the evidence rather than awaiting definitive proof of cause-and-effect. Some of these issues will be addressed during implementation; some will require further legislation.

 

We propose the following:

 

California will need to address known risks, such as those posed by exposure to lead, industrial emissions, hazardous chemicals used in workplaces and those used in products, such as halogenated flame retardants, perfluorinated chemicals and bisphenol A. Focusing exclusively on a long-term framework while neglecting these immediate concerns is akin to abandoning ambulance services to form a task force on population-based risk reduction for cardiovascular disease. In chemicals policy as in health care, both immediate and preventive strategies are needed. This will require further legislation and executive action.

 

Both bills authorize state officials to draw on chemical information available to other governments; doing so will speed the work required for implementation of AB 1879 given the scope of existing data gaps. While international data cannot specifically identify chemicals used in California, the many overlaps with databases in Europe and Canada will significantly improve our knowledge base.

 

The lifecycle assessments stipulated by AB 1879 must balance rigor and efficiency. As the law is written, public agencies bear the burden of conducting extensive lifecycle assessments for which they have inadequate information. This could block the potential gains afforded by the law.

 

State officials should document instances where data gaps limit their ability to implement the new laws, rather than relying on assumptions to fill those gaps.

 

California should prohibit trade secrets from being protected by default, instead requiring chemical producers to submit a request to claim confidential business information. Thirty years of experience under the federal Toxic Substances Control Act illustrates that overuse of trade secret claims by industry cripples effective oversight: in one assessment, the Environmental Protection Agency found that the chemical identity was claimed as confidential in 90% of new information filings to the agency.  

 

The role of industry stakeholders should be carefully circumscribed; while innovative producers can provide essential technical knowledge to decision-makers, commercial interests that are vested in existing chemicals or technologies should have a tightly restricted role in advising state officials.

 

California has demonstrated its willingness to navigate the obstacle course. As we implement the new laws, we will need to build a data-rich environment while increasing the capacity to act now to mitigate known hazards.