State authorities weigh in on Senate and House TSCA reform bills

Richard Denison, Ph.D., is a Lead Senior Scientist.

In recent weeks, two documents have been released by state government officials and organizations that take a deep dive into those aspects of the Senate and House bills to reform the Toxic Substances Control Act (TSCA) most relevant to them.  The documents explicitly point to specific provisions in one or both bills that are preferred or opposed.

The bills the documents compare are the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), passed by the full Senate on December 17, 2015; and the TSCA Modernization Act of 2015 (H.R. 2576), passed by the House of Representatives on June 23, 2015.

Here are the documents:

  • Environmental Council of the States (ECOS): An 11-page table dated January 7, 2016 posted in the “Featured” section of ECOS’ home page provides a side-by-side comparison of the two bills, focused mainly but not exclusively on state-federal relationship issues.  (Note that the preamble to the table indicates it does not represent a formal consensus, and many of the indications of preferences begin with a qualifier such as “Many states believe … .”)
  • 12 State AGs letter: A 7-page letter dated January 19, 2016 signed by the Attorneys General of 12 states (MA, CA, HI, IA, ME, MD, NH, NY, OR, RI, VT and WA) to the relevant Senate and House committee Chairmen and Ranking Members sets forth principles for state-federal relationships under TSCA reform and provides recommendations for reconciling those provisions of the Senate and House bills.

Both documents are well worth reading in their entireties.  To help me understand them, I have developed the table below that lists each specific provision identified in these documents for which a preference or opposition has been expressed or is readily discernible with respect to the Senate or House bill.  

In order to be as objective and consistent as possible:

  • the table is limited to provisions that are identified as either supported/preferred or opposed/criticized in one of the two bills (i.e., any provisions found in both bills or neither bill are not listed);
  • weights are not assigned to provisions; rather, each provision for which there is an indication of preference or opposition is listed;
  • references other than to actual text in one or both bills (e.g., the ECOS table’s reference to Senate report language on EPA’s Safer Choice program, which is not addressed in the bill text) are not listed; and
  • double-counting is avoided by listing only once cases where the same provision is referenced more than once or where a provision is supported in one bill and criticized in the other.

In the table below:

  • an “S” indicates a clear preference for a provision in the Senate bill or opposition to a provision in the House bill that is not in the Senate bill,
  • an “H” indicates a clear preference for a provision of the House bill or opposition to a provision in the Senate bill that is not in the House bill, and
  • a “–” indicates a provision that was not discussed, or on which a clear position was not expressed, in one of the two documents.
Provision
(listed in order of appearance in ECOS table)
ECOS
table
State AGs letter
Preemption of new state actions prior to final EPA actionHH
Compliance deadline for EPA requirementsS
Exclusion of state information-related requirements from preemptionSS
Description of state actions preemptedS
Exclusion of state actions under air/water/waste laws from preemption 

     Caveat relating to conflict with federal requirementsS
     Caveat relating to scope of state actionS
Scope of preemption with respect to hazards, exposures, risks, usesSS
Extent of preemption for new chemicals or significant new usesS
Grandfathering of prior state actions and lawsSS
Conditions for granting waivers after final EPA actionHH
Deadlines for EPA to act on waiver applicationsSS
Tort savings clauseS
State actions on low-priority chemicalsH
Sharing of confidential business information (CBI) with statesS
Requirement for resubstantiation of CBI claimsS
Extent of allowance for industry-requested chemical reviewsS
Deadlines for completion of EPA-initiated and industry-requested reviewsS
Exclusion of costs from EPA decisions relating to unreasonable riskS
Timing of exemption for replacement partsS
Fees collection authorityS
Penalties in cases of co-enforcementS

 

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