As we last reported in July, Congress continues to consider legislation designed to update the Toxic Substances Control Act (TSCA). The Chemical Safety Improvement Act (S. 1009), introduced in May 2013 by a bipartisan group of US Senators, represents the first real chance for a major overhaul of TSCA since its inception in 1976 and proposes significant changes to the US chemical management regulatory regime (see previous frESH blog post analyzing the bill – Bipartisan Group of Senators Introduces the Chemical Safety Improvement Act to Reform TSCA).
Interested parties continue to weigh in on the legislation, including testimony by Squire Sanders’ Steve Owens at a July 31, 2013 US Senate Environment and Public Works (EPW) Committee hearing. On the eve of this hearing, nine state attorneys general (representing California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Oregon, Vermont, and Washington) sent a letter to the Senate expressing their concern that the bill would preempt state authority and impair the “traditional state duty” to protect their citizens.
Among other issues, the attorneys general claim that S.1009 would prevent states from enforcing existing laws or adopting new laws regulating chemicals that EPA designates as “high priority” before any federal regulations protecting health and the environment become effective. The attorneys general further suggest that it would bar states from adopting and enforcing new laws regulating “low-priority” chemicals, even in the absence of any federal regulation of these chemicals. The letter also states that any waivers granted to states under S.1009 would be only temporary and difficult to obtain in light of the bill’s “compelling local interest” requirement, which the attorneys general argue requires a showing of circumstances unique to a particular state to receive a waiver.
These views contrast those presented by Sen. David Vitter (R-LA), one of the bill’s lead sponsors, and other EPW Committee members in support of S.1009, who said that the attorneys general overstated the bill’s preemptive effect and indicated that the preemption language in S.1009 would be clarified to address some of the states’ concerns. Proponents of the bill also point out that TSCA currently preempts state chemical regulations that conflict with EPA’s actions, although TSCA’s preemption provision has rarely come into play since EPA has wholly or partially banned only five chemicals. Supporters of the bill further assert that states would play a much greater role in federal chemical regulation under S.1009 than the current system, noting that the bill would give states the ability to petition EPA to put chemicals on the Agency‘s high priority list and obtain confidential information about chemicals from EPA. Supporters also assert that the “compelling local interest” requirement does not require uniquely localized risks, but rather that compelling conditions justifying a waiver exist within a state’s borders.
TSCA reform will continue to garner much attention in the upcoming months as Congress considers S. 1009. Squire Sanders will continue to monitor the bill’s progress and provide updates as events unfold.
