TSCA Reform Close to Reality, But at the Expense of California’s Green Chemistry Regulations?

After its enactment nearly 40 years ago, the federal Toxic Substances Control Act (“TSCA”) is nearing its first major overhaul.  TSCA has been viewed as generally ineffective in regulating chemicals as originally intended.  However, Congress has recently passed new TSCA reform bills that, if enacted, will substantially increase federal chemical regulation, but likely at the expense of similar state laws, most significantly California’s Green Chemistry Initiative, more formally known as the Safer Consumer Products Regulation (“SCPR”).

Under current law, the U.S. Environmental Protection Agency cannot regulate a chemical under TSCA unless there is evidence that the chemical poses a risk of unreasonable harm.  As a result of that high burden, very few chemicals over the 40-year life span of TSCA have been subject to regulation.  In response, states took matters into their own hands and enacted their own laws to regulate chemicals.  California’s SCPR, enacted in 2007, with regulations finalized in 2013, has been looked to by other states as a model.  The SCPR, by far the most comprehensive state effort to date,  requires identification of “priority products” that contain any of hundreds of designated chemicals, and mandates that alternatives to those products and/or chemicals be developed, or if such alternatives are not possible, one possible outcome is an absolute product ban.

Alarmed at the prospect of a patchwork of state regulations, Congress over the past few years stepped up efforts to reform TSCA and develop more comprehensive national standards.  The result of those efforts has been passage last month of Senate Bill 697 (the “Frank. R. Lautenburg Chemical Safety for the 21st Century Act”), which follows overwhelming passage of a less comprehensive House bill.  (It is likely that a House-Senate conference will be avoided, and the Senate bill in its current form will be presented to the president for his signature.)  In stark contrast to the current version of TSCA, Senate Bill 697 would shift the burden of regulation by requiring the regulation of chemical substances unless there is evidence that no unreasonable risk of harm will result from exposure to the chemical substance under intended, known, or reasonably foreseeable circumstances.  The reforms in the Senate bill would also require EPA to designate chemicals as either “high priority” or “low priority.” EPA would be required within 180 days of the law’s enactment to designate 10 each of high and low priority chemicals, another 20 of each within three years of enactment, and an additional 25 of each within five years of enactment.  Other elements of the law include strong business confidentiality provisions, chemical testing requirements, identification of “active” chemicals, and import/export issues.

The most contentious issue surrounding Senate Bill 697 concerns preemption of state laws.  If enacted, the law would generally preempt states from regulating or enforcing (1) testing and information requirements that would address the same information required under the federal law, (2) chemical substances that are either subject to regulation under the federal law, or otherwise determined under the federal law not to be subject to regulation, and (3) regulations affecting significant new uses of chemicals for which notification is required under the federal law.  Whether, and to what extent, California’s SCPR will be effectively rendered impotent as a result of the broad preemption provisions is uncertain, and there may not be clarity on the matter for some time.  One thing that is fairly certain, however, is that application of the preemption provisions to the California law will be subject to significant dispute and litigation.