Hello and welcome to the last installment of my series analyzing/explaining the Chemical Safety Improvement Act, which is currently still in committee and is intended to amend and replace major portions of TSCA (Toxic Substances Control Act), which has not seen a really significant update since it was passed in 1976. I’ve written about CSIA and TSCA, and Sections 1-3 of CSIA, Section 4, Section 5, Sections 6-9, and Sections 10-13. This post will contain the remaining sections. Remember that these posts are discussing CSIA in the version that was submitted to committee. I don’t have a real idea yet of what it will look like when it comes out of committee, and even then we’ll have to see if Congress can get its act together enough to perhaps maybe think about possibly voting on it.
This section of CSIA makes only conforming changes to the corresponding TSCA section.
This section is one that has the potential to be particularly contentious, because it is all about pre-emption. In the TSCA section regarding pre-emption, state regulation is (in general) pre-empted in the context of chemical substance and mixture testing. TSCA also pre-empts state regulation to the extent EPA has issued a rule or order regarding a given chemical substance, unless state regulation is identical to the federal regulation imposed by the EPA, or adopted under the Clean Air Act or other federal law, or “prohibits the use of such substance or mixture in such State or political subdivision (other than its use in the manufacture or processing of other substances or mixtures).” Under TSCA, states and other political subdivisions are allowed to petition the EPA for an exemption of this pre-emptive effect as long as this state or political subdivision is not in violation of the federal requirement, or the state’s requirement is more stringent than the federal regulation but does not place an “undue burden” on interstate commerce.
CSIA would significantly broaden the scope of the pre-emption of federal regulation. This section could prospectively retrospectively pre-empt state or local chemical regulatory restrictions:
- Requirements for test data development on a chemical substance or category of substances that is likely to produce the data required by CSIA sections 4, 5 or 6 by rule, order or consent agreement
- Any prohibition or restriction on the manufacturing, processing, distribution or use of a chemical after a safety determination
- Any notification requirement for a use of any chemical that the EPA has specified a “significant new use” required under section 5
CSIA would prospectively pre-empt state and local regulations regarding the manufacture, processing, distribution or use of a chemical the EPA has listed as a high-priority or low-priority substance. It would NOT pre-empt state or local regulations that:
- Are adopted under other federal regulations (Clean Air Act, etc.)
- Implement reporting or requirements regarding the collection of information not otherwise required by CSIA or currently under TSCA
- Are adopted by the state with the intent only to regulate water and air quality and waste disposal, not to impose restrictions on manufacturing and processing
Under this section of CSIA, states are allowed to seek waivers for restrictions and limitations if they have an urgent need and certifies the truth of certain data points. The EPA may grant this waiver if it agrees that the state has “compelling State or local conditions” that warrant a need for such a waiver to protect public health or the environment, and if the waiver would not place an “undue burden” on both interstate and foreign commerce. This only applies under the assumption that the state regulation in question does not violate federal law, and that the waiver is granted based on the “best available science and is supported by the weight of the evidence.”
EPA determinations regarding these waivers will be subject to judicial review, but safety determinations made by the EPA will be considered admissible as determinative evidence in court.
This section is mostly conforming changes to the corresponding section in TSCA, but makes some interesting changes regarding the rule-making record of TSCA. This will allow the EPA to include in its rule-making record any “information that the Administrator considers to be relevant” if it’s identified in a Federal Register notice issued on or before the date of the rule. This will not prevent the EPA from using this provision to get around standard notice and comment requirements.
This section makes conforming changes to the corresponding section in TSCA.
This is the end!
The House Committee on Energy and Commerce, Subcommittee on Environment and the Economy held a hearing on June 13th of this year regarding Title I of TSCA: Understanding its History and Reviewing its Impact. This hearing was held because of CSIA and the Safe Chemicals Act of 2013, which was also introduced by Senator Lautenberg.
More recently on July 11th, the same Subcommittee held a hearing on “Regulation of New Chemicals, Protection of Confidential Business Information, and Innovation.” I can summarize who provided testimony at these hearings, and the content of their testimony if anyone is interested. And of course, once I hear news of CSIA inching its way out of committee and toward Congressional debate (if any), I’ll be sure to let you know.