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September 23, 2013
Fed preemption moot with stronger TSCA

In a resolution, the Environmental Council of the States (ECOS) said that any revision of the Toxic Substances Control Act (TSCA) should preserve state authority to protect its citizens if the federal government fails to do so.

ECOS’s concerns rise out of proposed changes to Section 18 of the existing TSCA, which allows states to issue laws and regulations concerning chemicals when the risks posed by those chemicals have not been addressed by the EPA or provide a significantly higher degree of protection from risk than the federal requirements and do not overly burden interstate commerce.  The Chemical Safety Improvement Act (CSIA), a bipartisan bill that has advanced in the Senate, would increase the areas in which the federal government could preempt state actions. 

But the CSIA would also substantially increase the very limited power the EPA wields under the current TSCA to require that chemical manufacturers demonstrate the safety of their chemicals and to restrict or prohibit certain chemicals.  In other words, in light of stronger federal laws to require the assessment of chemical risks and reduce those risks, states may see less of a need to act independently.  

Regaining confidence

That point was made by Justin Johnson, Deputy Secretary for the Vermont Agency for Natural Resources, who spoke on behalf of the ECOS at a recent congressional hearing.

“States have had a loss of confidence that TSCA works as thoroughly or quickly as it ought to, leaving states to pass their own laws and rules on chemical management,” testified Johnson.  “However, if TSCA did work thoroughly and quickly, there would be much less incentive for states to enact additional requirements.  State authority would be preserved, but seldom used.  As a practical matter, implementation of comprehensively reformed TSCA would render the state preemption issue largely moot, as states will focus their increasingly limited resources on other priorities.” 

Accordingly, in the resolution, the ECOS indicates its support for TSCA reform that “ensures the preservation of state authority to protect citizens and the environment from toxic exposures and to manage chemicals of concern, and only restricts that authority if compliance with both state and federal law would be impossible.”            

State access to CBI

Another state concern involves sharing of the confidential business information (CBI) chemical companies provide to the EPA as required by TSCA.  States generally agree with the EPA that there should be more opportunities for the Agency to share CBI with local, state, and foreign governments when necessary to protect public health and safety.  The EPA also believes that a reformed TSCA should require that manufacturers provide stronger justifications for CBI protection.  The CSIA would expand manufacturer information that would be entitled to CBI. 

In his testimony, Johnson concedes that state standards regarding the sharing of CBI are generally more open than those of the federal government.  The ECOS resolution calls for establishing a “streamlined process” through which the EPA would share data, including CBI, with the states.

The EPA has worked with industry to resolve aspects of the CBI problem through the Agency’s voluntary TSCA CBI Declassification Challenge.  In this program, companies review past filings submitted to the Agency and declassify those that are not legally appropriate or no longer necessary.

The ECOS resolution

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