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List of 'chemicals of concern' may be 'game changer' for producers

NORTH BAY – The California Department of Toxic Substance Control is considering new regulations on how it monitors chemicals and how dangerous substances are defined – known as “green chemistry” – and the proposals thus far could have a significant impact on companies in California.

[caption id="attachment_25079" align="alignleft" width="108" caption="John Epperson"][/caption]

The current proposals, which have yet to be announced, stem from Assembly Bill 1879, passed in 2008. It was an attempt to create a systematic approach to dealing with numerous chemical issues arising within the Legislature, which were becoming increasingly patchwork and disparate, said John Epperson, a special counsel with Farella Braun & Martel, a law firm with offices in St. Helena and San Francisco. The bill set a deadline of Jan. 1, 2011, for coming up with final regulations.

Now, as that deadline looms and as the legislation is debated, significant concern is centered on whatever shape the regulations take and just how far-reaching the new rules may be, Mr. Epperson said. The comment period for the regulations ended in July.

A list of “chemicals of concern” is one element that is being considered, and the scope of such a list has the potential to be a “game changer” for companies producing chemicals in California, Mr. Epperson said.

“A big question is how many chemicals are going to make it on that list of concern,” Mr. Epperson said. “It can be very far reaching. It’s going to change how people make their products.”

According to the state office, the draft legislation “will create a systematic, science-based process that evaluates chemicals of concern in products” and will “also stimulate innovation in California’s product development sector.”

The legislation would prioritize toxic chemicals while requiring manufactures to “seek safer alternatives” to identified chemicals in products. Stricter governmental enforcement would be created for lack of compliance as well, the state office said.

While the legislation is still in flux – and could change between now and January of next year – a mountain of comments have been submitted expressing concern about both whatever chemicals may be identified and how such a law would be implemented.

“Our major concern is how we are going to report all of our chemicals,” said Barbara Roberts, president of Wright Engineered Plastics in Santa Rosa, which is a Sonoma County certified green manufacturing business. “We probably use thousands and thousands of components and each one is sent to us from hundreds of different sources.”

“Consumer products subject to the Green Chemistry Program are very broadly defined to be any product used, bought or leased for use by a person for any purpose,” Mr. Epperson said in a client update, writing with Farella Braun & Martel attorneys Robert Hines and Deborah Tellie. “As such, these regulations have a huge potential reach.”

Chemical-producing companies should start planning now for any changes, Mr. Epperson said, adding that it’s a matter of when – not if – the changes will have broad impact.

Industry groups, he continued, are hoping for incremental changes rather than a massive overhaul in order to prepare alternative assessments, which are time-consuming and costly for companies.

Ms. Roberts said that phased implementation was clearly the best route, and that sweeping changes could prove detrimental for the industry.

“It’s got to be very small scale and the consideration of impact has to be very careful,” she said, adding that she supports environmental regulations and green technology. But, “you don’t want all of your industry to leave the state, and that’s happened in the past,” she said.

Slower implementation, along with a list of chemicals that starts off small but could grow overtime, could be one way to assuage the industry's numerous concerns, Mr. Epperson said.

“That is one end,” he said, “identify the most truly hazardous substances, and then expand as necessary.”

That could be a challenge, though, because environmental and consumer groups will likely prefer a broader scale of implementation.

For chemical-producing companies, Mr. Epperson said, “It’s going to be a challenge for them to effectively move forward. It will be very resource-intensive.”

Although specific substances are still being debated – along with possible exempted substances – Mr. Epperson said some of the obvious candidates include plasticizing products such as phthalates; Bisphenol A, or BPA; as well as various fire retardants.

The legislation may be some of the most ambitious regulation in the country and could go a long way in curbing – or at least consolidating – California’s chemical wars, Mr. Epperson said.

Accordingly, companies would be wise to begin looking at alternatives.

“The message for anybody who either makes products or is somehow involved is to take a look at these regulations and assess what the impacts could be on them, and then keep an eye on them as they change,” Mr. Epperson said. “A lot of companies already do a great job, and it’s just a matter of adapting. For other companies that may not be as adept as others, they should take a look at these so they don’t get blindsided.”