TSCA REFORM AND THE IMPACT ON STATE LAWS (STATE PREEMPTION)

10 November, 2016

What’s Happening?

With the enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, there were many changes made to the Toxic Substances Control Act.  One of the more debated changes involved how this new law would impact existing state laws regarding the regulation of chemicals.  Under the previous version of TSCA, the Environmental Protection Agency (EPA) rarely preempted state laws regarding existing chemical legislation.  However, under new TSCA, federal action will preempt state law but only under certain conditions.

How Could it Impact Me?

Currently, there are existing laws in many states that were passed in response to the absence of federal action on numerous chemical substances.  It is now anticipated that under new TSCA, the EPA will have the ability to evaluate and act on many existing chemicals (those already listed on the TSCA Inventory). As federal action on existing chemicals begins, the states’ authority will be preempted, but only for chemicals on which the EPA is currently acting.  This means that the preemption clause is both chemical-specific and applicable only to existing chemicals.  States are free to pass legislation on new chemicals (chemicals not yet listed on the Inventory).

The preemption clause in TSCA only applies to state restrictions on chemicals.  It will not have an impact on any requirements for reporting, monitoring and disclosing data on specific chemicals. Additionally, federal preemption of state law will only apply to the scope of EPA’s review.  This means that if EPA did not consider a specific use in its assessment of a chemical substance, a state would be free to restrict that use of the chemical.

State actions that occurred prior to April 22, 2016 are preserved.  For example, California’s Proposition 65 requirements for warning labels will remain. EPA’s final actions on a chemical will generally preempt any state restriction.  This would be the case when the EPA makes a finding that a chemical poses unreasonable risk or when it finds that the chemical does not pose unreasonable risk.  States may request a waiver from preemption once the EPA has decided on a final action for the chemical.  The EPA must review and decide on all requests for a waiver.

States generally cannot impose new restrictions on a chemical during EPA’s evaluation of that chemical.  Once EPA decides to prioritize a chemical for review, states have 12-18 months to get a waiver that would allow them to complete an initiated action on a chemical that would remain in place until the EPA takes final action.

In summary, EPA’s final action under TSCA will preempt state laws but only pertaining to chemical-specific restrictions.  States’ ability to take other action on existing chemicals and any actions on new chemicals is unchanged.

Contact Us

Critical Path Services can help you to interpret the changes implemented through the reformed TSCA regulation and assist you in positioning your company to meet these new challenges. Critical Path can also provide representatives of your company with a free consultation to talk you through the major changes enacted by the new law and how these changes could affect your business.

References and Related Documents
Lautenberg Chemical Safety Act for the 21st Century

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Elizabeth Dederick, Ph.D. Vice President, Industrial Chemicals and Biocides
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