EDF Health

UPDATED: Understanding Preemption in the Lautenberg Act

By / Published: May 8, 2015

FRL21 Preemption sidebar UPDATEDRichard Denison, Ph.D., is a Lead Senior Scientist.

[*UPDATED 5-8-15:  This is a new version of an earlier post that I’ve updated to reflect changes made to the preemption provisions in the bill as reported out by the Senate Environment and Public Works Committee on April 28, 2015.]

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 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 similar to 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.

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EDF welcomes 14 additional cosponsors of the Lautenberg Act

By / Published: May 7, 2015

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

Environmental Defense Fund welcomes today’s announcement that 14 additional Senators – 7 Democrats and 7 Republicans – have cosponsored the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697).  This brings the total number of Senators cosponsoring the legislation to 36, more than a third of the full Senate.

The Lautenberg Act would reform our nation’s badly broken 40-year-old chemical safety law, the Toxic Substances Control Act (TSCA).  The equal numbers of Democrats and Republicans lending their names to this legislation not only affirms strong bipartisan support, but demonstrates Congress’ growing recognition that reform of TSCA is urgent, and that this bill is a solid compromise that represents our best chance in a generation to significantly improve public health protections from toxic or untested chemicals.

Today’s announcement was made possible by a breakthrough in negotiations immediately preceding the April 28 markup of the legislation in the Environment and Public Works Committee, which led the Committee to approve the revised bill on a strong 15-5 bipartisan vote.

Today’s announcement in turn signifies that it is now time to move the legislation to the Senate floor.

 

Adding their names today to the 22 earlier cosponsors of the Lautenberg Act are:

Sen. John Barrasso (R-WY) Sen. Jeff Merkley (D-OR)
Sen. Cory Booker (D-NJ) Sen. Lisa Murkowski (R-AK)
Sen. John Cornyn (R-TX) Sen. Chris Murphy (D-CT)
Sen. Tom Cotton (R-AR) Sen. Marco Rubio (R-FL)
Sen. John Isakson (R-GA) Sen. Tim Scott (R-SC)
Sen. Tim Kaine (D-VA) Sen. Jeanne Shaheen (D-NH)
Sen. Claire McCaskill (D-MO) Sen. Sheldon Whitehouse (D-RI)

 

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EDF applauds bipartisan breakthrough on TSCA reform legislation

By / Published: April 27, 2015

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

Environmental Defense Fund applauds the enormous progress announced today by Senators on both sides of the aisle to develop and advance bipartisan legislation to reform our nation’s badly broken 40-year-old chemical safety law, the Toxic Substances Control Act (TSCA).

Today’s announcement is the culmination of two years of tough negotiations led by Senators Tom Udall and David Vitter, who have worked steadfastly to address the concerns of Members and stakeholders. With the agreed-upon changes, the revised bill represents a strong, bipartisan compromise that fixes the major flaws in current law and addresses each of the key concerns raised by Members at the March hearing.

The strong bipartisan support for this manager’s amendment paves the way for the Committee to advance legislation to the Senate floor that can finally bring our chemical safety law into the 21st century.

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TSCA reform legislation: Confidential business information

By / Published: April 23, 2015

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

Part 1              Part 2              Part 3              Part 4              Part 5

[UPDATE 4-29-15:  On April 28, 2015, the Senate Environment and Public Works Committee passed a revised version of the Lautenberg Act out of the committee on a bipartisan 15-5 vote.  The new bill made a few revisions to a provision discussed in this post; see update below.]

[UPDATE 5-17-15:  On May 14, 2015, the House Subcommittee on Environment and the Economy passed a revised version of the TSCA Modernization Act of 2015 out of the subcommittee on a bipartisan 21-0 vote.  The new draft made a significant revision to one of the provisions discussed in this post; see update dated 5-17-15 below. UPDATE 5-28-15:  The legislation was formally introduced as H.R. 2576 on May 26, 2015.  The new version made no significant changes to the CBI provisions discussed below.]

This is the fourth in a series of blog posts looking at less talked-about, but critically important, elements of bipartisan legislative proposals to reform the Toxic Substances Control Act (TSCA).  This post deals with how EPA would address industry claims for protection of confidential business information (CBI) pertaining to chemicals, and disclosure of CBI to various parties.  The discussion is divided into three parts, addressing:  (1) CBI claims for chemical identity, (2) access to health and safety information and (3) duration of CBI claims.

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TSCA reform legislation: How chemicals are selected for safety evaluations

By / Published: April 20, 2015

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

Part 1              Part 2              Part 3              Part 4              Part 5

[UPDATE 4-29-15:  On April 28, 2015, the Senate Environment and Public Works (EPW) Committee passed a revised version of the Lautenberg Act out of the committee on a bipartisan 15-5 vote.  The new bill made a few revisions to provisions discussed in this post; see updates below.]

[UPDATE 5-17-15:  On May 14, 2015, the House Subcommittee on Environment and the Economy passed a revised version of the TSCA Modernization Act of 2015 out of the subcommittee on a bipartisan 21-0 vote.  The new draft made several revisions to provisions discussed in this post; see updates dated 5-17-15 below.  UPDATE 5-28-15:  The legislation was formally introduced as H.R. 2576 on May 26, 2015.  ]

This is the third in a series of blog posts looking at less talked-about, but critically important, elements of bipartisan legislative proposals to reform the Toxic Substances Control Act (TSCA).  This post deals with how EPA would select which chemicals would undergo safety evaluations.

Under current TSCA, EPA has no mandate to review the safety of existing chemicals. There are no pacing requirements, such as specifying minimum numbers of chemicals to be examined.  The law provides no criteria for EPA to use in identifying chemicals that may pose risks.  There are no requirements for EPA to establish goals for reviews or schedules for any reviews it does undertake.

Safety reviews are rarely undertaken, and often consume many years (or even decades) – in large part because there are no mandates or deadlines.  As a result of these aspects of the current law, only about 2% of the chemicals that were on the market at the time TSCA was enacted have undergone any sort of safety review.

In 2012, EPA on its own initiative undertook a prioritization process that has led to identification of about 90 so-called “work plan” chemicals, for which EPA is conducting or intends to conduct risk assessments; five have been completed to date.

How would TSCA reform legislation identify chemicals to be subjected to safety reviews?   Read More »

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TSCA reform legislation: EPA review of new chemicals

By / Published: April 16, 2015

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

Part 1              Part 2              Part 3              Part 4              Part 5

[UPDATE 5-17-15:  On April 28, 2015, the Senate Environment and Public Works Committee passed a revised version of the Lautenberg Act out of the committee on a bipartisan 15-5 vote.  On May 14, 2015, the House Subcommittee on Environment and the Economy passed a revised version of the TSCA Modernization Act of 2015 out of the subcommittee on a bipartisan 21-0 vote.  UPDATE 5-28-15:  The legislation was formally introduced as H.R. 2576 on May 26, 2015.  The new versions made no significant changes to the new chemicals provisions discussed below.]

This is the second in a series of blog posts looking at less talked-about, but critically important, elements of bipartisan legislative proposals to reform the Toxic Substances Control Act (TSCA).  This post deals with EPA authority to review new chemicals prior to their entry into commerce.

TSCA divided the universe of chemicals into two groups:  “Existing chemicals” are those on the market at the time the first TSCA Inventory was established (1979), numbering some 62,000 chemicals.  These chemicals were grandfathered in by the original law, with no mandate for them to be tested or reviewed for safety.  “New chemicals” are those that entered commerce at some point since 1979, numbering some 23,000 chemicals.  Between 500 and 1,000 new chemicals enter commerce in a typical year.  (Given these large numbers, it’s surprising how relatively little focus there has been on the way bipartisan reform proposals would address new chemicals.  I’ll amplify on this point at the end of this post.)   Read More »

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