State Regulatory Authority under the New Toxic Substances Control Act
Two years ago, the Toxic Substances Control Act (TSCA) was significantly overhauled with bipartisan support in Congress, and with substantial support from the chemical industry. The EPA has now begun implementing the “New TSCA,” also known as the Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576), which was officially signed into law by President Obama in 2016 (15 U.S.C. 2601 et seq.).
One of the most controversial elements of the overhaul was the scope of federal preemption and the continued role of the states in chemical regulation. In the absence of robust federal chemical regulation under the Old TSCA, many states became active participants in chemical regulation. Under the New TSCA, California and other states were remarkably successful in preserving existing state regulatory schemes, such as California’s Proposition 65, and preserving the ability to act on chemicals the EPA has not addressed. This article addresses the areas of retained state authority under the New TSCA and the continued action by states in the arena of chemical regulation.
Retained State Regulatory Authority
The most significant federal preemption exemptions for state chemical rules are contained in the grandfathering provisions—which exempt from preemption certain entire state chemical regulatory schemes enacted prior to the TSCA amendments.
Section 18 now expressly excludes three distinct categories of state and local laws from TSCA preemption:
Action taken pursuant to a state law that was in effect on August 31, 2003.
15 U.S.C. §2617(e)(1)(B). This exemption specifically exempts from federal preemption California’s Proposition 65 (enacted by referendum in 1986), and Massachusetts’ Toxics Use Reduction Act (enacted in 1989). In addition, the exemption protects new actions taken under those laws irrespective of the timing of state action. So, for instance, California will be able to continue to add chemicals to its Proposition 65 list of chemicals, regardless of any federal risk evaluation for such chemical under TSCA.
Continued state enforcement, or requirement imposed, or requirement enacted “relating to a specific chemical substance” as of April 22, 2016, “that prohibits or otherwise restricts manufacturing, processing, distribution in commerce, use or disposal of a chemical substance.
15 U.S.C. §2617(e)(1)(A). Here, state enforcement of requirements imposed prior to the TSCA amendments is protected from preemption, regardless of later EPA action on any specific chemical. However, unlike the first exclusion discussed above, this exemption does not safeguard new actions taken pursuant to the existing state laws after April 22, 2016.
New requirements prohibiting or restricting specific chemicals added by states—after April 22, 2016—therefore would be preempted.
Any state or federal common law rights or any state or federal statute creating a remedy for civil relief, including those for civil damage, or a penalty for a criminal conduct [including] any cause of action for personal injury, wrongful death, property damage or other injury based on negligence, strict liability, product liability, failure to warn, or any other legal theory of liability under any state law, maritime law, or federal common law or statutory theory.
15 U.S.C. §2617(g). This provision preserves common law causes of action, providing recourse for plaintiffs alleging harm even from a chemical EPA has found does not present an unreasonable risk.
No Preemption of Traditional State Powers
In addition to the grandfathering provisions discussed above, New TSCA specifically exempts from preemption (with narrow exceptions) state regulations adopted pursuant to state law related to water quality, air quality, or waste treatment or disposal. 15 U.S.C. §2617(d)(1)(A) (iii). Further, preemption applies only to state restrictions of chemicals. There is no preemption for state disclosure requests, including reporting, monitoring, or other information obligations for chemical substances not otherwise required by EPA. 15 U.S.C. §2617(d)(1)(A)(ii).
States also have co-enforcement authority, meaning that states are free to enact and enforce a new requirement identical to an EPA requirement without being subject to preemption. 15 U.S.C. §2617(d)(1)(B). A state may collect penalties under its co-enforcement authority unless the penalties collected by EPA are “adequate.” Id.
Continued Action by States
Despite the significant overhaul to TSCA, there has yet to be a slowdown in the brisk pace of state action in this arena. States continue to enact consumer “right to know” laws and other laws requiring disclosure of the presence of certain chemicals. For instance, California’s “Cleaning Product Right to Know Act of 2017,” which requires manufacturers to disclose ingredients used in cleaning products (including fragrances) on the product label and online, was signed into law on October 15, 2017. Cal. Health & Safety Code §§108950, et seq.
Although these consumer right to know laws do not constitute chemical regulation per se, the practical effect of these laws may be that the “right to know” element results in the reduction of the use of certain chemicals. Once a chemical is identified, a product manufacturer may attempt to eliminate the chemical to avoid the reporting requirement and the negative consumer reaction to the chemical.
As those in the chemical industry are well-aware, increased consumer awareness regarding the presence of chemicals drives much of the state action, especially in regard to single chemical bans. For instance, in 2017, Rhode Island and Maine banned flame retardants. See Sec. 1. 38 MRSA §1609-A (August 2017); R.I. Gen. L. §23-26-3.1 (2017). At least 17 states are currently considering similar bans on the use of flame retardants in various products, including children’s products, upholstered furniture, and electronic products. (See Bill Tracker for Toxic Flame Retardants, available at http://www.saferstates.com/toxic-chemicals/toxic-flame-retardants).
Despite the numerous open questions regarding the scope of federal preemption, two years into implementation of the New TSCA, it is apparent that states will continue to vigorously regulate chemicals in consumer products. Even if EPA action ultimately preempts some of these state laws, state action may not be entirely precluded; states could seek waivers or continue to regulate the chemical in areas where state law is not preempted, and states could also continue to impose disclosure and reporting requirements under their retained state regulatory authority.
Corrie Plant is a partner at Bick Law LLP, a boutique environmental law firm located in Orange County, CA. Her practice focuses on environmental litigation and compliance counseling, including CERCLA, RCRA, Green Chemistry, FIFRA, TSCA, the Consumer Product Safety Improvement Act and California’s Proposition 65.
Krista deBoer is a senior associate also at Bick Law LLP. Her practice focuses on environmental litigation, compliance counseling and enforcement defense, including under CEQA, CERCLA, RCRA, the Clean Air Act, and the Clean Water Act.