States to Congress: Preserve Our Authority Over Chemicals

By Pat Rizzuto

Feb. 12 — State authority to regulate chemicals must be preserved as House and Senate legislators work to complete legislation updating the Toxic Substances Control Act, four state organizations said Feb. 12.

“Over the past 30 years states have played, and continue to play, an important role in regulation where federal action has been delayed or absent,” wrote the executive directors of the National Governors Association, National Conference of State Legislatures, Environmental Council of the States (ECOS) and Association of State and Territorial Health Officials in a letter sent to the House and Senate leadership.

“States' chemical evaluation procedures augment the efforts of the Environmental Protection Agency under TSCA,” they wrote.

“The ability of states to develop and impose standards pending final EPA rules on some or all of the substances addressed by TSCA should be maintained,” according to the groups.

House, Senate to Merge Two Bills

The House and Senate are negotiating ways they could merge the TSCA Modernization Act , which sailed through the House June 23, 2015, on a 398–1 vote, and the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which the Senate approved unanimously by voice vote Dec. 17, 2015. Prior to the vote, the Senate bill was designated S. 697, but it passed as a substitute amendment (S. Admt. 2932) to H.R. 2576.

The Senate bill would temporarily stop—or set a regulatory pause—on state regulations concerning a high priority chemical once the EPA announces the scope of its planned risk assessment.

The bill's preemption language would, however, allow states to issue certain types of regulations during that regulatory pause. States also could seek waivers to issue regulations and could issue regulations if the EPA's assessment is delayed past certain deadlines in the bill. Bloomberg BNA provided more details on preemption and other issues in a recent side-by-side of the measure it published .

The House bill would not preempt state regulations until after completion of EPA assessments.

Yet in other ways, the scope of prevention in the House bill would be broader than in the Senate's bill, attorneys general from California, Hawaii, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Oregon, Rhode Island, Vermont and Washington said in a Jan. 21 letter they sent to House and Senate leaders .

Sen. James Inhofe (R-Okla.) told Bloomberg BNA Feb. 10 House negotiators aren't moving fast enough in their efforts to merge their narrowly focused TSCA-reform bill with the Senate's more comprehensive TSCA overhaul .

Letter Timed to Influence Negotiations

Elena Waskey, press secretary for the National Governors Association, said that before legislators meet in a formal conference, the organizations wanted to reemphasize their view that states retain some ability to regulate in any final TSCA reform measure. In June 2015, the NGA sent Reps. John Shimkus (R-Ill.), and Frank Pallone (D-N.J. a letter commending the House bill.

Melanie Condon, a policy specialist with the National Conference of State Legislatures, told Bloomberg BNA it was important to issue a joint statement as negotiations proceed on the two bills.

“It was important for us to make our unified positions known. I think it says a lot that these four groups can come together on this issue of state preemption, and we hope it will be a powerful push to the lawmakers to put the best language in the final bill,” Condon said.

State Authority Key Issue for Years

The extent to which EPA decisions and regulations about chemicals would preempt state authorities, and the timing of the preemption, has been the central issue during the years-long discussions, hearings and legislative changes that led to the House and Senate passage of their respective bills.

The American Chemistry Council is among the industry associations that has chosen not to voice a position on the House or Senate bill, but support passage of an updated TSCA.

Concerns about divergent state-based regulation of chemicals has been, however, a concern that led many trade associations and chemical companies to support TSCA modernization.

State organizations and attorney generals, meanwhile, have increasingly said state authority to regulate chemicals must be preserved in any TSCA reauthorization bill.

A recent analysis distributed, but not produced, by ECOS identified specific provisions in the House and Senate bill that states supported or disagreed with and identified provisions in other laws that might be included in a final bill revising TSCA .

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 state letter is available at http://src.bna.com/cCR .