States uneasy with TSCA bill
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August 20, 2013
States uneasy with TSCA bill

The optimism that initially bloomed with the bipartisan introduction of the Chemical Safety Improvement Act (CSIA, S. 1009) has been significantly dampened by criticism of the bill, most loudly from the state of California.  Many major environmental and public health groups have also weighed in against certain provisions in the bill as well as the absence of requirements they view as essential to true reform of the Toxic Substances Control Act (TSCA).

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Lautenberg’s legacy

The CSIA resulted from the collaboration of late Senator Frank Lautenberg (D-NJ) and Senator David Vitter (R-LA), ranking member of the Senate Environment and Public Works Committee (EPW).   The bill includes major revisions to TSCA, including required safety evaluations for all active chemicals in commerce and increased EPA authority regarding the prioritization of chemicals for safety assessment; obtaining information from companies about the risks posed by their chemicals; and the Agency’s implementation of risk-reduction measures, including labeling requirements, restrictions on the quantity of the chemical that may be manufactured, restrictions on use, and bans/phaseouts.

Preemption

Critics of the bill are most concerned about its preemption provisions, which block the states from taking actions on chemicals if they do not conform to what the federal government does under TSCA.  California in particular has objected to the preemption provisions because it has been at the forefront among states in addressing chemical risk and safety.

Actions taken by California include:

  • A statewide ban on certain flame retardants;
  • Limiting the use of volatile organic compounds (VOCs) in consumer products; and
  • Passage of Proposition 65, which compels manufacturers to provide labels warning the public about the risks posed by chemicals products. 

The CSIA could preempt the labeling requirements in Prop 65 if these are found to restrict “distribution in commerce.” 

Illusory waiver

Any state could request a waiver from preemption, but this provision is “illusory,” according to Michael Troncoso, senior counsel to the Attorney General of California.

“[The waiver] does not allow the states to adopt and enforce a stricter standard than the federal government,” said Troncoso, “and it requires a showing of ‘compelling local interest’ that most state chemical laws today could not meet.”

Written testimony submitted by Troncoso at a recent EPW hearing on S. 1009 was co-signed by the attorneys general of eight states in addition to California.

Resources lacking

A counter argument regarding state interest is provided by H. Michael Dorsey, Chief of Homeland Security and Emergency Response with the West Virginia Department of Environmental Protection.

“Notwithstanding the programs in California, Washington, and a few other locations, most of the country – West Virginia included – lacks the resources and/or personnel to develop and implement chemical testing programs of their own,” testified Dorsey. 

“Because of this, we look to the federal government to perform that important work for us.  I understand the reason that the more fortunate areas have forged ahead on their own, and I understand their concern that their efforts not be undermined; but, I strongly believe that protective language is in place, or that stronger language can be forged that will protect existing programs and allow the program to move forward for the rest of us.  I think that CSIA is the best, and perhaps the last, chance to make needed repairs to TSCA.”

It remains to be seen whether endorsements of this type will be enough to overcome many reservations about the CSIA.  California Senator and EPW Chair Barbara Boxer notes that she has received major objections about the CSIA from the Asbestos Disease Awareness Organization, the American Association for Justice, 24 environmental health and justice advocates, and 34 legal experts, who said  S. 1009 as “drafted, takes a step backward.”

Click here for testimony on the CSIA.

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