One of the biggest topics of debate surrounding the bi-partisan attempt to reform the Toxic Substances Control Act (TSCA) has been whether the bill, the Chemical Safety Improvement Act (CSIA), would preempt state law. Senator Barbara Boxer (D-CA), Chair of the Committee on Environment and Public Works, has been vocal, expressing her concerns that the bill would preempt state laws, including California’s Proposition 65. In late July, Senator Boxer organized a hearing about the issue, “Strengthening Public Health Protections by Addressing Toxic Chemical Threats.” Much of the discussion focused on whether CSIA would preempt existing state laws and/or prevent states from promulgating additional laws regulating toxic chemicals.
In addition to testimony, several publications were introduced during the hearing, including reports from the Congressional Research Service (CRS) and the Republican and Democratic staffs, as well a letter from the Attorneys Generals (AG) of nine states. The Republican paper, “Myth vs. Fact: The CSIA and Preemption” asserted that CSIA “will never preempt the traditional state roles of regulating water quality, air quality, waste treatment, or disposal and does not preempt wholesale state regulatory programs,” but admitted that “in some instances” CSIA would preempt chemical regulations “in a narrowly tailored way.” Conversely, the CRS report, “Proposed Reform of the Toxic Substances Control Act (TSCA) in the 113th Congress: S. 1009 Compared with S. 696 and Current Law,” and the Democratic staff’s paper, Claims vs. Facts About the Chemical Safety Improvement Act (CSIA),” argued that CSIA would preempt new state and local laws for chemicals identified as high or low priority. In “Claims vs. Facts,” the Democratic staff highlighted the scope of CSIA’s preemption of state authority, finding that preemption would be “more expansive than that in the current law,” but also pointing out that the bill expands TSCA’s federal authority.
The AG’s letter, penned by AGs from California, Connecticut, Delaware, Maryland, Massachusetts, New Mexico, Oregon, Vermont, and Washington, expressed “deep concerns about [CSIA’s] unduly broad preemption language” which could “seriously jeopardize public health and safety by preventing states from acting to address potential risks of toxic substances and from exercising state enforcement powers.” The AGs focused on their focus on children’s health and the historic role that states have played in chemical regulation, providing a list of laws by state:
- California has enacted state-wide bans on certain flame retardants (California Safety Code §108922), limits on the use of VOCs in consumer products (California Code of Regulations, title 17, § 94509), the Safe Cosmetics Act (Health and Safety Code § 111791), Proposition 65, and the Green Chemistry Program.
- Maryland has enacted laws regulating products with brominated flame retardants (Md. Code Ann., Envir. § 6-1202) and cadmium in children’s jewelry (Md. Code Ann., Envir. § 6-1402), and banning the manufacture and sale of lead-containing children’s products (Md. Code Ann., Envir. § 6-1303).
- Massachusetts has enacted laws banning the sale of mercury-added products (310 C.M.R. 75.00), regulating lacquer products (MA General Laws ch. 94, § 329), and a comprehensive chemicals management scheme that requires companies that use large quantities of particular toxic chemicals to evaluate and plan for pollution prevention and annually measure and report the results (MA General Laws ch. 21I), and banning hazardous substances in toys used by children (105 C.M.R. 650.000).
- Oregon has enacted laws banning products containing certain flame retardant chemicals (ORS 453.085(16)), toxic substances in arts and craft supplies (ORS 453.205 to 453.275), all products susceptible to use by a child containing hazardous substances (ORS 453.055), and mercury in thermometers, novelty items, light fixtures, and commercial/residential buildings (ORS 646.608, 646A.080, 646A.081, and 455.355).
- Vermont has enacted laws banning lead in consumer products (9 Vt. Stat. Ann. § 2470e-l), brominated and chlorinated flame retardants (9 Vt. Stat. Ann. §§ 2972-2980), phthalates (18 Vt. Stat. Ann. § 1511), and bisphenol A (9 Vt. Stat. Ann. § 1512).
- Washington has enacted laws banning manufacture, distribution or sale of certain products containing polybrominated diphenyl ethers (Wash. Rev. Code 70.76), sports bottles, or children’s bottles, cups, or containers that contain bisphenol A (Wash. Rev. Code 70.280), and children’s products containing lead, cadmium, and phthalates above certain concentrations (Wash. Rev. Code 70.240).
Addressing preemption, the AGs expressed concern about the CSIA’s “sweeping preemption of state authority” which they argued would “preempt states from enforcing existing laws or from adopting new laws regulating chemicals that EPA designates as ‘high priority’ months or years before any federal regulations protecting health and the environment become effective.” (S.1009, at § 15(a)(2)). Specifically, the AGs compared the bill with TSCA:
|Limits preemption to situations where the federal government has acted to protect against a risk of injury to health or the environment (15 U.S.C. § 2617(a)(2)(B)).||Preempts state authority to adopt and enforce new laws addressing “low-priority” chemicals while precluding federal regulation and judicial review of EPA’s priority designation. (Id., at §§ 4(e)(3)(H)(ii), 4(e)(5) and 15(b)(2)).|
|Allows states to adopt new laws or enforce existing laws after EPA has acted to regulate a substance (15 U.S.C. § 2617(a)(2)(B)).||Removes the authority for states to adopt regulations identical to federal standards, eliminating their ability to enforce federal standards under state law, while revoking state authority to ban in-state use of federally regulated chemicals. (S.1009, at §§ 15(a)(2), 15(b)(1), and 15(b)(2)).|
|Authorizes EPA to grant waivers from preemption of more stringent state regulations as long as the regulations do not unduly burden interstate commerce. (15 U.S.C. § 2617(b)).||Includes an “illusory” waiver provision, granting temporary waivers with automatic expiration dates that require states to certify a “compelling local interest.” (S.1009, at §§ 15(d)(1)(B)(i) and 15(d)(2)(B)(ii)).|
The Committee also discussed concerns over CSIA’s lack of deadlines for EPA action, additional language for vulnerable subpopulations, and the impact safety determinations would have on state tort litigation.