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Federal Preemption Under the Revised Toxic Substances Control Act

June 14, 2016

The Frank R. Lautenberg Chemical Safety for the 21st Century Act (HR 2576) reforms the current Toxic Substances Control Act (TSCA). After some back and forth on preemption and other issues in HR 2576, the House of Representatives passed it on May 24, 2016. After being temporarily stalled in the Senate by Rand Paul (R-KY), the bill was passed in under two weeks on June 8, 2016.

Flickr: Brittany Bush Bollay
Flickr: Brittany Bush Bollay

On the one hand, the final version of TSCA reform makes several improvements in the Environmental Protection Agency’s (EPA) authority to address chemical safety. On the other hand, the new legislation preempts state and local authority under some circumstances. The new preemption provisions are of special concern to states such as California that have historically provided strong leadership in chemical safety. During the negotiations over HR 2576, 12 state attorneys general submitted a letter opposing TSCA “reform” that included preemption of stronger state laws, stating:

“In prior correspondence and testimony on behalf of our states, we have said that, to the extent that TSCA reform legislation contemplates preemption of state and local regulation, any such preemption should be as limited as possible and consistent with fundamental principles regarding the vital, complementary roles that the states and the federal government must play, and historically have played, in chemical regulation.”

State environmental agency directors from Connecticut, Minnesota, New Hampshire, New York, Vermont and Washington also signed on to a letter opposing preemptive federal legislation, saying: “State authorities are excessively and unnecessarily preempted, in exchange for the promise of federal protection that is too meager… Our states have been leading the way with innovative policies and state-level standards that have made great progress in this area. Our laws and regulations have in turn accelerated action by the private sector, and the federal government, to improve chemical safety. Far from leading to a patchwork quilt of competing regulations, state leadership on toxics has a demonstrated track record of spurring national agreements with manufacturers, or paving the way for federal legislation.” (Emphasis added.)

However, as adopted, the Lautenberg Act does strengthen EPA jurisdiction in several significant ways. “High priority” chemicals must undergo a science-based risk evaluation, which empowers the EPA to regulate such chemicals. New chemicals must now undergo a 90-day review period that results in an “affirmative safety finding” by the EPA before going to market; while in some cases this time period may be extended to 180 days. It also expands the EPA’s authority to test chemical safety and seeks to “reduce and replace animal testing where scientifically reliable alternatives exist,” among other improvements.

Simply put, if EPA determines a chemical neither presents an unreasonable risk nor requires regulatory action, that decision preempts state laws that would contradict that determination (subject to some exclusions). The preemption is chemical specific and applies only when and to the extent EPA acts on a specific chemical. Source: The National Law Review, 

However, preemption language in the TSCA raises several practical concerns. During the risk evaluation period no State or local government “may establish a statute, criminal penalty, or administrative action prohibiting or otherwise restricting the manufacture, processing, distribution in commerce, or use of such chemical substance that is a high-priority substance…” Once the EPA finds that a chemical does “not pose unreasonable risk,” state and local governments are preempted from adopting or enforcing any restrictions on that chemical. Of greatest concern, of course, is that the EPA’s effectiveness depends on the competence and commitment of the EPA Administrator, who is appointed by the president.

In a gesture towards state and local control, states will retain their chemical reporting and monitoring authority, and chemical restrictions enacted prior to April 22, 2016 will remain in force.

Among other concerns, the aggregate negative effects of exposure, presence of chemical metabolites in water and food systems, and other potential areas of harm may not be quantifiable in the 90- to 180-day testing period. Thus preemption is of particular concern in communities in which chemicals are manufactured, shipped, stored, or disposed.