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By Pat Rizzuto
June 14 — States needing to regulate chemicals can do so despite federal preemption provisions in the Toxic Substances Control Act overhaul Congress passed, an attorney and a legislative analyst said in recent days.
Several state officials, however, have told Bloomberg BNA they remain disappointed in the preemption language of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576).
The bill passed the House and Senate on May 24 and June 7, respectively, and is expected to be signed into law by the end of the month.
The preemption provisions of the anticipated law were “the toughest part of the negotiations, not just in recent weeks and months but over the years,” said Richard Denison, lead senior scientist and legislative analyst with the Environmental Defense Fund, a key player in the TSCA-reform negotiations.
Preemption was the first issue in the debate to arise and the last to be resolved, Denison said during a June 13 webinar held by Bergeson & Campbell P.C.
The final bill allows states to restrict a chemical until or unless EPA takes up that same chemical and addresses the same uses and concerns, he said. The scope of any preemption is directly tied to the scope of EPA’s review, leaving states free to address any uses or risks EPA has not addressed, Denison said.
In addition, past and future actions taken under state laws in effect on Aug. 31, 2003, would be protected, and state laws or regulations in effect before April 22, 2016, that address a specific chemical also would be grandfathered, meaning they would remain in force as Bloomberg BNA showed in a previous analysis of the legislation.
States could not regulate a chemical the EPA already has regulated through new use or certain other provisions of TSCA, under H.R. 2576.
States also could not regulate the uses, exposures or other chemical factors that EPA defined in the scope of its risk evaluation for the next 30 months (36 with a brief extension) or until the risk evaluation is completed—whichever is sooner, a period known as the “preemption pause.”
“ECOS' understanding is that the pause applies to the specific use that EPA is studying and as such, states are not preempted from taking action regarding other uses of the same chemical. In addition, states can see a waiver if the pause creates a public exigency in their state,” Alexandra Dunn, executive director and general counsel at the Environmental Council of the States, or ECOS, told Bloomberg BNA in a June 14 e-mail.
The Indiana Department of Environmental Management still is assessing the reforms included in the TSCA-reform bill, agency spokeswoman Courtney Arango told Bloomberg BNA June 12.
So far, however, the legislation would seem to have no immediate impact on the department's work, she said.
The Indiana department expects the bill to improve protections for public health and the environment by making regulations more uniform and increasing transparency about the safety of chemicals that are regulated, Arango said.
Kirk Koudelka, assistant commissioner for the Minnesota Pollution Control Agency, told Bloomberg BNA June 10 that his agency has concerns about the state preemption provisions in the TSCA-reform bill, but would be unlikely to challenge the final law.
Instead, he said, Minnesota will work with the EPA through the waiver provisions of the legislation.
Michael Globetti, a spokesman for the Delaware Department of Natural Resources and Environmental Control (DNREC), told Bloomberg BNA the department's s Division of Waste & Hazardous Substances “does not anticipate any changes to its current programs,” and the state does not plan to take independent action on any specific chemicals in response to the TSCA reform.
New York State's Attorney General Eric T. Schneiderman voiced the strongest opposition to the TSCA-reform bill.
“I am disappointed that the amended Toxics Substances Control Act passed by Congress expands federal preemption, creating new obstacles to the ability of New York and other states to protect their citizens from the hazards of toxic chemicals,” Schneider said in a June 8 statement.
Sen. Rand Paul (R-Ky.) voiced a different concern—about excessive regulation—in the floor discussions that preceded the Senate's June 7 passage of H.R. 2576.
“Federal regulations will preempt not only aggressive regulatory states, such as California, but also market-oriented states, friendly states, such as Texas and Louisiana,” Paul said.
“Texas and Louisiana will no longer be able to veto the excesses of Washington,” he said.
With the assistance of Bloomberg BNA correspondents.
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