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Toxic Tort and Environmental Litigation: What Does a Reformed TSCA Mean for Private Rights of Action Under State Law?

September 15, 2016

JD Supra

September 14, 2016

As we reported, on June 22, 2016, President Obama signed the Frank R. Lautenberg Chemical Safety Reform for the 21st Century Act (the Act) into law, enacting the Toxic Substances Control Act’s (TSCA) first reform in its four decades of existence. In the debate over the bill, within and across cameral and party lines, the timing of preemption under the Act was a major source of disagreement. The Act’s passage resolved these disagreements, raising new questions regarding preemption: how far has the Act extended federal preemption of state actions related to chemical safety? How might the Act affect common law tort actions?

Preemption Under TSCA Post-Reform

According to 15 U.S.C. § 2617(a), subject to certain enumerated exceptions, states are prohibited from enacting or continuing to enforce:

  • Statutes or administrative actions requiring information development about a chemical substance or category of chemical substances when a rule, consent agreement, or order has been issued by EPA regarding tests of chemical substances or mixtures, manufacturing and processing notices of new, or significant new uses of, chemicals, and regulation of chemical substances and mixtures.[1]

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