Angering environmentalists, Arnold rewrites his Green Chemistry initiative in his final days in office

By Michael Collins

L.A. Weekly – December 9, 2010

Gov. Arnold Schwarzenegger’s legacy as the “green governor” looks to have gotten some goo in the works in his final days in office, when he signed off on a Department of Toxic Substances Control (DTSC) plan that environmentalists assailed as gutting his Green Chemistry Initiative.

Environmentalists charge that the toxics department pulled a bait-and-switch last month, when DTSC slashed the proposed regulations by a third and put the onus of proving a new chemical is harmful on the already overstretched agency instead of on the chemical industry.

The governor’s initiative, launched two years ago, was intended to protect Californians from toxins before and after they come to the marketplace in product form.

The enviros say the amended regulations won’t remove toxic products from the shelves and will create “paralysis by analysis,” as industries can litigate against DTSC over unfavorable department decisions.

Activists say California was poised to lead the way on toxics regulation but now is faced with potentially one of the weakest chemical-regulatory mechanisms in the nation.

“We are very disappointed with Gov. Schwarzenegger and his pandering to the chemical industry. His legacy will continue to be that of an actor rather than an actual governor,” says Jan Robinson Flint, executive director of Black Women for Wellness. “The Green Chemistry Initiative had the potential of protecting the people of California and promoting green jobs and products, but obviously his concern is not with our community.”

Flint’s group is part of a coalition of environmental and social justice groups called CHANGE (Californians for a Healthy & Green Economy). It includes Coalition for Clean Air, Pesticide Action Network North America and Physicians for Social Responsibility Los Angeles.

At a Dec. 2 press conference in Sacramento, CHANGE campaign director Ansje Miller lamented what effect these new DTSC changes might have on more than 80,000 chemicals currently used in the marketplace, only 1,500 of which now are regulated.

“This revised regulation is a betrayal of the Green Chemistry promise and ignores two years of public input, while caving to backroom industry lobbying,” Miller said. “This is a betrayal to public interest groups, businesses, and residents of California. … Moreover, legislators who supported the intent of this bill, to protect Californians and spur a healthy, innovative green economy, have also been betrayed.”

Major environmental organizations are hopping mad as well. “The last-minute gutting of the rules betrays Gov. Schwarzenegger’s promise of a Green Chemistry Initiative that would protect Californians from toxic products,” Bill Magavern, director of Sierra Club California, tells the L.A. Weekly. “If the Schwarzenegger administration does not restore the integrity of the process, that job will be left to Gov.-elect Jerry Brown.”

He stood beside Schwarzenegger when the Green Chemistry Initiative was announced on Sept. 29, 2008. The governor sported a spiffy green tie and ebulliently declared, “California will be on its way to have the most comprehensive Green Chemistry program in the world.”

“[T]his is exactly what I had in mind when we launched our Green Chemistry Initiative in 2007,” Schwarzenegger said, as he was surrounded by politicians, environmentalists and chemical-industry representatives. “With these two landmark [environmental] bills, we will stop looking at toxins as an inevitable by-product of industrial production. Instead, they will be something that can be removed from every product in the designer stage, protecting people’s health and our environment, from cradle to grave.”

Before signing the bills, Schwarzenegger explained: “With AB 1879 we get powerful new tools to identify hazardous chemicals and to find suitable alternatives … and with SB 509 this will establish a toxic-information clearinghouse to give consumers valuable and easy-to-find information about chemicals.”

Environmentalists say the toxics department gutted the initiative at the behest of the chemical industry, then put out the changes for public comment during a 15-day period just before Thanksgiving — in violation of the law requiring a 45-day public comment period when a substantial reworking of state regulations is proposed.

California Government Code says the shorter 15-day comment period is permissible only if changes are “(1) nonsubstantial or solely grammatical in nature, or (2) sufficiently related to the original text that the public was adequately placed on notice that the change could result from the original” proposal.

The state toxics department doesn’t see the truncated comment period as a violation.

“The Administrative Procedures Act requires a 15-day comment period for changes to a regulation,” DTSC’s acting director Maziar Movassaghi told the Weekly in a Dec. 3 e-mail, the day its shortened comment period ended. “We were aware that our comment period spanned the Thanksgiving holiday and we provided an additional two days for commenters.”

Movassaghi took issue with environmentalists’ charges that only product manufacturers must comply with the restrictions under the rewrite, leaving the rest of the supply chain, such as chemical manufacturers, off the hook for making sure products are safe.

“This is not true,” Movassaghi says. “The primary responsibility continues to lie with the manufacturer.” But, “If they don’t comply, the retailers become responsible. In considering the complexity of the supply chain, and our ability to enforce, we feel this is the best approach.

“The thrust of these sections has remained consistent from previous versions,” Movassaghi adds. “We strongly believe that the changes that have been made streamline the process, so that we can move forward much quicker.”

But do these DTSC’s draft regulations have the backing of the green governor?

“Yes, California’s Green Chemistry program is the most comprehensive chemical-management program in the nation,” his spokesperson Rachel Arrezola says. “The department has been working with all interested parties for nearly two years on regulations to better protect our environment and the safety of our people, and there is no question we are now closer to our goal of ensuring all products are safe for consumer use.”

Blame for the controversy lies with environmentalists, according to a statement released Dec. 2 by the Green Chemistry Alliance, which includes the American Chemistry Council, Boeing, Exxon, Dow Chemical Company and the Chemical Industry Council of California.

“To these activists, no regulations have been viewed as sufficiently punitive toward California business and consumers,” their statement read. “Their interest appears rooted not in a desire for a workable, beneficial regulatory system but in the advancement of an ideology that makes no concession to the well-being of consumers, taxpayers or California’s economy.”

Exasperated CHANGE environmentalists, like Christina Medina of the Center for Environmental Health, respond: “All public-interest groups want is an unbiased system that tests chemicals for safety before they are put on the market, that is fair, transparent and takes a precautionary approach to protect the public health.”

But now, she fears, “We risk falling behind the rest of the world market as the demand for safer chemicals becomes the norm.”

Schwarzenegger’s last-minute changes to his vaunted Green Chemistry Initiative have been justified by supporters as being more realistic and economical in these hard times.

Tough new regulations cost cash that the state and its citizens don’t have, the argument goes, and wasting money on tackling all toxics instead of a targeted few doesn’t make sense.

Nonsense, says Heidi Sanborn, executive director of the California Product Stewardship Council. Sanborn says the economic cost of watering down these regulations will affect typical Californians’ pocketbooks in a very direct way.

In particular, the governor allowed the deletion of language that had prioritized specific hazardous products for regulation — products that currently “cost Californians $100 million a year to manage in household hazardous-waste programs,” Sanborn tells the Weekly.

“We are still hopeful that we can work with DTSC to resolve this deficiency. Otherwise, we can expect that garbage rates will have to go up to cover these costs.”