Chemical Bill's Preemption Provisions Panned as Vote Nears

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By Pat Rizzuto

May 20 — The House released a bill May 20 that reconciles the House and Senate's separate measures to revamp the Toxic Substances Control Act.

For the first time, the nation's primary chemicals law would require the Environmental Protection Agency to evaluate the risks of chemicals in commerce. The bill also would make it easier for the EPA to obtain toxicity and other information to assess chemical risks, require chemical manufacturers to pay fees for services the agency provides, allow states access to confidential chemical information they may need to address spills or other situations and yet protect industry's ability to keep certain information confidential and out of competitors' hands.

Next Steps

The House Rules Committee will take up the bill, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576), May 23. As the leadership's traffic cop, the rules committee decides for how long and under what procedural rules the House will debate the bill (see related story).

The bill will go to the House floor for a vote the week of May 23, Matt Sparks, a spokesman for House Majority Leader Kevin McCarthy (R-Calif.), told Bloomberg BNA May 19.

The Senate will take up the bill following the House vote, Sen. James Inhofe (R-Okla.), chairman of the Environment and Public Works Committee, said at May 19 press conference (see related story).

The bill posted online has technical changes when compared to the widely circulated May 16 draft agreement, an aide from the House Committee on Energy and Commerce told Bloomberg BNA. For example, a sentence in the “replacement parts” portion of the bill was restructured giving it a more active voice.

The Senate Environment and Public Works Committee issued a summary of statements members of the House and Senate made supporting the bipartisan backed bill.

Flash Point: Preemption, Congressional Voices

As the final bill nears the House and Senate floors, some lawmakers objected to preemption provisions that remain. The provisions describe when states may regulate chemicals and when federal law would preempt them from doing so.

Sen. Bernie Sanders (I-Vt.), who also running for president, criticized the bill in a statement.

“While this legislation allows Vermont to continue enforcing existing state regulations to keep adults and children safe from toxic chemicals such as PFOA, it makes it more difficult for states to set new, stricter standards,” he said.

“Federal chemical regulations should be a floor, not a ceiling. States should not be stopped from going above and beyond minimum federal safety standards,” Sanders said.

Rep. Paul Tonko (D-N.Y.), ranking member of the House Energy and Commerce Subcommittee on Environment and the Economy, also issued a statement: “I am not convinced that the program that will be put into place by this bill justifies the unprecedented, new limitation of states’ authorities.”

Officials from Seven States Weigh In

Ken Zarker, section manager in Washington State's Department of Ecology, told Bloomberg BNA “a lot of good work has been done” on the bill, but it could be better.

States should be able to take regulatory action to manage a chemical's risks until the EPA takes a final action, he said.

The bill would strip states from taking certain actions—allowed under TSCA—to protect their residents, Zarker said.

A waiver process established in the bill is too complicated for states and the EPA, he said. States that have compelling reasons to regulate a chemical they would be preempted from managing could seek a waiver under the bill.

Environmental officials in California, Connecticut, Minnesota, New Hampshire, New York, Vermont and Washington issued statements that also objected to the constraints on state chemical regulations they said remain in the bill.

“To be clear, there are good elements in the legislation. However, state authorities are excessively and unnecessarily preempted, in exchange for the promise of federal protection that is too meager,” six state officials wrote in a statement disseminated by Washington State's Department of Ecology.

State laws and regulations have in turn spurred marketplace changes and the federal government to improve chemical safety, the six officials said.

“The version of the reform bill currently under consideration contains broad preemption language that would effectively prevent states from banning chemicals and passing laws or updating regulations to address toxic chemicals affecting their people and environment,” the same officials wrote in a separate statement disseminated by New York State's Department of Environmental Conservation.

Matthew Rodriquez, California's Secretary for Environmental Protection, issued a statement supporting TSCA reform and the extent to which Sen. Barbara Boxer (D-Calif.) and fellow Democrats already reduced the preemption in the bill.

The bill should be revised, however, to allow states to regulate more chemicals and ban dangerous chemicals, Rodriquez said.

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576) and a summary of the bill are available at https://rules.house.gov/bill/114/hr-2576-sa.