Richard Denison, Ph.D., is a Lead Senior Scientist.
By far the most difficult and contentious aspect of the debate over reform of the Toxic Substances Control Act (TSCA) is the extent of federal preemption of state authority. The range of positions on this is truly gigantic, from zero preemption (Senator’s Boxer’s consistent position) at one end of the spectrum to full-field preemption effective upon enactment (the position espoused by some in industry).
The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) has landed somewhere in the middle of this spectrum, with some stakeholders saying it still goes too far and others saying not far enough. And wherever you land on that question, it should be acknowledged that preemption in the bill is more extensive than under current TSCA, but much less extensive than it was in the predecessor to the Lautenberg Act, 2013’s Chemical Safety Improvement Act (CSIA).
There has been a lot of confusion surrounding preemption in the Lautenberg Act. So in this post, I describe how preemption works under the bill, and what is and is not preempted.
In the sidebar is a summary of the key preemption provisions of the Lautenberg Act. The rest of this post is a deeper dive for those who want one.
Preemption under the Lautenberg Act
The first thing to recognize is that any preemption that applies is always chemical-specific and directly matches the nature and scope of the triggering federal action. That is, preemption attaches only when EPA acts on the same chemical that has been or would be subject to a state action, and only when EPA considers the need for or takes the same type of action as has been or would be taken by a state. And preemption is limited to the scope of the EPA action (for example, the specific uses of a chemical considered by EPA).
Outside of these boundaries, states are free to act on chemicals. The new system would be basically the same as the current system except when EPA decides a chemical is a high priority and may require federal action.
Below I discuss the major components to the preemption provisions of the Lautenberg Act.
(1) State actions subject and not subject to preemption
Types of state actions that are subject to preemption:
- If EPA requires a company to do testing, states can’t require it to test to generate the same information.
- If EPA requires a company to notify EPA before beginning a particular use of a chemical, states can’t require notification of that same use.
- If EPA places prohibitions or other restrictions on the production, processing, distribution or use a chemical, or decides that such restrictions are not necessary, states cannot place restrictions on the same uses or to address the same health/environmental concerns.
- States cannot co-enforce, i.e., enact and enforce requirements identical to those taken by EPA.
Types of state actions that are not preempted:
- State requirements for reporting, monitoring or biomonitoring, or other information collection, unless already required under TSCA or another Federal law.
- State actions to prohibit or restrict a chemical EPA has acted on if:
- the state is acting on a use of the chemical that EPA did not consider or that does not fall under EPA’s TSCA jurisdiction (Note: TSCA does not cover personal care products, cosmetics, food packaging and food additives, which are uses regulated by FDA, or pesticides, which are regulated by EPA under a different law);
- the state is acting under delegated authority under another federal law (e.g., the Clean Air Act);
- the state is acting under a state law but to address a different health or environmental concern than EPA’s action under TSCA addresses (e.g., a restriction on a greenhouse gas); or
- the state obtains a waiver from EPA to act even where EPA intends to act or has acted.
In other words, even if EPA acts on a high priority chemical, states can still restrict it to deal with other goals – like limiting global warming, clean air or water, or some toxics use not covered by the federal action.
State actions grandfathered in:
Finally, the Lautenberg Act grandfathers in, regardless of subsequent EPA action, all state actions:
- taken before January 1, 2015; or
- taken under a state law adopted on or before August 31, 2003 (this provision has the effect of grandfathering in California’s Proposition 65, which requires warning of the presence of certain chemicals in products or other settings).
(2) Preemption of state actions on high-priority chemicals
Preemption can occur at two distinct points in the bill’s process for EPA evaluation of high-priority chemicals:
- Preemption of certain pre-existing as well as new state actions on a chemical occurs when EPA takes final action on that same chemical.
- Preemption of certain new state actions on a chemical occurs when EPA starts work on that same chemical.
Preemption that occurs at final agency action on a high-priority chemical
Under the Lautenberg Act, a final agency action on a high-priority chemical triggers preemption of certain state actions, including actions taken after 2014 or taken under a law adopted after August 31, 2003, as well as potential future actions. Final agency action is either: (1) a final safety determination by EPA that a chemical meets the bill’s safety standard, or (2) if EPA finds a chemical does not meet the safety standard, a final rule regulating that chemical (which must either ban/phase out the chemical or impose restrictions sufficient for it to meet the safety standard), as of its effective date.
This trigger for preemption is similar to that provided under current TSCA. Importantly, the scope of this preemption is directly tied to the scope of EPA’s safety assessment and determination and, where required, its rule regulating the chemical. States remain free to act on any uses or health or environmental concerns not explicitly addressed by EPA.
All of the exceptions described earlier apply, as well as the ability of a state to obtain a waiver. Designations of a chemical as low-priority no longer have any preemptive effect, which was the case under the original 2013 bill, CSIA.
Preemption that occurs when EPA starts work on a high-priority chemical
Perhaps the most controversial aspect of preemption under the Lautenberg Act is that once EPA initiates work on a chemical it has designated as high-priority, states cannot undertake new actions to restrict that chemical. (Note, however, that states can take new actions to address uses and concerns that are not included in the scope of EPA’s assessment, and can continue to take other actions that do not restrict the chemical. All of the exceptions described earlier apply, as well as the ability of a state to obtain a waiver.)
The trigger for preemption of new state actions is the commencement of EPA’s safety assessment of a chemical, an early step in the process. Under the bill, deadlines apply to each step in EPA’s evaluation of a high-priority chemical: EPA has up to 3 years to complete a safety assessment and determination, and up to 2 more years to issue a risk management rule where required; these deadlines can be extended up to 2 more years in the aggregate upon showing of cause by EPA.
In this post, I’ve tried to provide a straightforward analysis of how preemption would work under the Lautenberg Act. Striking the right balance on this issue has proven to be both exceedingly difficult and critical to garnering the bipartisan support needed to pass a law. As with many compromises, no one is likely to be happy with the outcome.
Of course, preemption is only one part of the Lautenberg Act, and needs to be viewed in the broader context of all of the new authorities and mandates it would provide EPA. Click here for our broader analysis of the bill.