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CSIA Supporters to Clarify TSCA Bill's Preemption Provisions

U.S. News, California, Green Chemistry Intiative, Proposition 65, Non-Sub  

By Jack Schatz

Monday, February 3, 2014 

Senate supporters of a bipartisan bill purporting to reform the Toxic Substances Control Act (TSCA) are weighing several proposed amendments they hope will address concerns voiced by state regulators opposing the bill.  Chief among those concerns are fears that the current language in the bill will severely limit or completely preempt state toxics programs.

Sources say that among the ideas being discussed is new language that would preserve state toxics laws like California's Proposition 65, but not necessarily regulatory programs, such as the state's landmark Safer Consumer Products Regulation, which industry fears will create a patchwork of banned substances.

A state source says there has also been talk of measures to streamline waiver provisions states can use to preserve certain regulations and grandfathering provisions for existing state programs.

Another possible measure being discussed, according to the state source is one that would extend state authority until EPA renders a final action on a particular chemical, in light of concerns that it could be up to 10 years following a high priority designation before the agency can issue final action on a chemical substance.

But state government sources say section 15 of the bill, which deals with preemption, "needs a lot of work" before some states will express support for the legislation.  State regulators have said they want to see the debate on preemption shift to how state programs can share responsibility of enforcement with the U.S. Environmental Protection Agency.  State regulators are seeking the same type of partnership that has been in effect for years in the prosecution of other federal environmental statutes like the Clean Water Act.

Sources familiar with the effort say it is aimed at reaching agreement with Sen. Barbara Boxer (D-CA) and other bill opponents. However, so far, the new push for a deal, led by Sens. David Vitter (R-LA) and Tom Udall (D-NM), does not appear to have persuaded Boxer, who has said she will block the passage of the bill until preemption and other key provisions are addressed.

"Now is the time to move forward," with the legislation, Vitter said in a statement. "We have been working very hard since the [bill] was introduced to improve the bill and are growing our strong bipartisan coalition with the momentum to reform the outdated, unworkable, Toxic Substance Control Act," he added.
 
But a Democratic Senate aide says, "negotiations are ongoing but so far the concerns regarding preemption have not been addressed."

The renewed Senate negotiations over the preemption provisions come as several political and other factors are creating renewed uncertainty over the bill's prospects. Most notably, the recent chemical spill in West Virginia highlighted EPA's lack of authority to gather toxicity and other data on the estimated 62,000 chemicals that are grandfathered under current law. "It helps expose an area of TSCA that has gotten some attention" regarding the grandfathered chemicals and current testing requirements, according to an industry source.

But environmental advocates have opposed the measure by citing the toxic spill to highlight deficiencies in the Senate bill, saying it would still create a decade-long process before EPA could act. "In its current form, [the bill] would require EPA to go through as much as a decade of preliminary steps before it could start regulating additional chemicals" Dan Rosenberg of the Natural Resources Defense Council (NRDC) said in a blog post.  He noted  it would be difficult to obtain information even once the analysis was underway.

Rosenberg said the bill would prevent EPA from requiring testing of a chemical unless it has been classified as "high priority" that in many cases may be difficult to establish without additional testing.  Because of the lack of available hazard and toxicity data for thousands of chemicals in commerce -- including 4-methylcyclohexane methanol (MCHM) -- one of the chemicals spilled in West Virginia, Rosenberg said the bill would "widely preempt" state action on high-priority and other chemicals.

On the political front, Vitter recently announced that he is running for governor of Louisiana in 2015, a move some say may create urgency for him to cut a deal.
 
House Legislation
 
House legislators are also poised to introduce a TSCA reform bill in the coming weeks that some sources say could offer approaches to address some of Boxer's concerns. But the House could also renew and intensify opposition to any reforms, given that a House energy committee staffer says it will have "some similarities" to the Senate bill.

Rep. John Shimkus (R-IL), chair of the House energy committee's environment panel, said last year that while he is crafting a bill to introduce in 2014, he hopes that senators will reach a deal that will allow its bipartisan reform bill to advance.

The Chemical Safety Improvement Act (S. 1009), is a compromise between Vitter, the environment committee's ranking Republican, and the late Frank Lautenberg (D-NJ).  The bill -- which has won more than a dozen co-sponsors from each party -- seeks to address TSCA reform comprehensively, revising most of the law's current provisions.  The bill introduced last May won strong support from industry leaders, which are pushing for strong preemption provisions to head off what they say is a patchwork of state chemical control regimes.

Industry groups are citing the recently introduced Vermont state bill that would allow regulators to identify chemicals of concern and designate them as "high priority," barring them from use in children's products as an example of a law creating a patchwork of regulations. If enacted, the bill will add its' own set of requirements to dozens of similar state regulations, which are a "response to a lack of action on TSCA reform," according to an industry source.

But most environmental groups and states have strongly criticized the Senate bill, saying it will not provide EPA with adequate authority to regulate chemical substances and preempts state laws and regulations.

Of special concern for Boxer and states are the bill's provisions preempting state programs, which California officials have warned would bar states from enforcing existing chemical regulations after EPA issues a safety determination and from imposing new restrictions on chemicals identified as "high-priority" by EPA at the time the agency publishes a schedule for assessing safety of the substance.

Supporters of S. 1009, however, counter that there is much misinformation about the bill's preemption and other provisions and that it would not hinder the ability of state's to plan or respond to chemical releases, but rather would help generate new information that could be shared with states to reduce potential spill risks.

Supporters assert, the bill contains language to exempt from preemption any state or local action adopted under any other federal statute or state law related to water or air quality and waste disposal, supporters of the legislation say.

Preemption Provision
 
Initial talks in 2013 between Boxer and the bill's supporters broke down in part because they were unable to resolve their differences over federal preemption and other provisions in the measure.

But now the senators and their staff are making a renewed attempt to reach an agreement. "It sounds like they're working on an amendment of clarifying language -- there has been some discussion we might see something this quarter," a chemical industry source says, but adds "Boxer needs to be convinced -- it's not an easy task."

Republicans on the environment committee are willing to make it clear that the bill would not impact what they call "labeling laws" like Proposition 65 the industry source said.  But are insisting preemption provisions could apply to certain consumer product uses of individual substances targeted in state programs like California's Safer Consumer Product Regulation.

California officials from Cal/EPA and the state Attorney General's office have vigorously objected to language to preempt the new regulations. Their counterparts in other states implementing similar programs have taken the same stand, calling for the elimination of language that would preempt state laws and regulations.

But Republicans have tried to make the case that the bill has limited preemption provisions that are specifically designed to address TSCA-like regulations issued by states to target individual substances. They also say the bill would give states the power to petition EPA to designate a chemical as high priority.   Opponents of the bill counter that as written the bill could preempt every state chemicals program throughout the U.S., without requiring EPA to take any regulatory action on chemical currently regulated at the state level.

EPA officials have appeared to be more involved than previously in the discussions with lawmakers about the CSIA, which supporters of the bill believe "could help" with addressing Boxer's concerns, since EPA is the implementing agency.

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